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Will Supreme Court Reargument of the Knick Takings Case Come Down to the Federal Government's "Klingon Forehead" Argument?

The Supreme Court has ordered reargument in a crucial property rights case. The outcome could hinge on an extremely dubious theory put forward in an amicus brief by the federal government.

The evolution of Klingon foreheads. It's not easy to explain how the Star Trek original series Klingons (top row) are really the same species as those from later movies and series (bottom row).The evolution of Klingon foreheads. It's not easy to explain how the Star Trek original series Klingons (top row) are really the same species as those from later movies and series (bottom row).

Last month, the Supreme Court heard oral argument in Knick v. Township of Scott, an important Fifth Amendment takings case concerning whether property owners can bring regulatory and "inverse condemnation" takings cases in federal court, as opposed to having to go through state court. In Knick, the Court will decide whether to overrule or limit Williamson County Regional Planning Commission v. Hamilton Bank, a 1985 decision that makes it virtually impossible to bring many types of takings cases in federal court. Williamson County creates a Catch 22 for property owners, under which they cannot file a takings case in federal court until they have first secured a "final decision" from the relevant state regulatory agency and has "exhausted" all possible remedies in state court; but then, the very act of first going to state court precludes a later appeal to a federal court. I explained the issues at stake in the case in a Wall Street Journal op ed, and more fully here and in an amicus brief I coauthored on behalf of the Cato Institute, the National Federation of Independent Business, the Southeastern Legal Foundation, the Beacon Center of Tennessee, the Reason Foundation (which publishes Reason magazine and this website), and myself.

Like other cases the Court considered during the first week of its sitting, there were only eight justices on the bench, because Justice Brett Kavanaugh's nomination was still held up in the Senate in order to give time for the FBI to investigate sexual assault allegations against him. Ultimately, however, Kavanaugh was confirmed by a narrow margin. And on November 2, the Supreme Court issued an order that Knick is to be reargued before the full nine-justice Court.

The order could well have been issued because the eight justices who heard the original oral argument are split 4-4. After the argument, I thought there might be a 5-3 split, with Justice Elena Kagan siding with the four conservatives in support of the property owner. But it's entirely possible I got this wrong. Alternatively, there might not be a 4-4 split on the result, but there is a division on the rationale that Kavanaugh could help clarify. Whatever the reason for the reargument, Kavanaugh will now get to participate in the case, and the result could well hinge on his vote.

What Kavanaugh might do is hard to predict. He has virtually no previous record on takings or other constitutional property rights cases, so no one really knows where he stands on these issues. Takings cases often split the Court along right-left ideological lines. As a conservative, Kavanaugh might therefore be expected to vote for the property owners here. But other conservative justices have broken ranks on takings cases in the past, and we cannot ignore the possibility that Kavanaugh might do so, especially in a case where a decision in favor of the property owner might require overruling or severely limiting a 33-year old precedent. At the very least, Kavanaugh's replacement of Justice Anthony Kennedy creates greater uncertainty for the property rights side in this case, since Kennedy was one of four justices who joined a 2005 concurring opinion urging the Court to consider overruling Williamson County. He would likely have voted to get rid of it in this case had he stayed on the Court.

The Supreme Court's order setting the case for reargument also ordered the parties to file supplementary "letter briefs" addressing some specific issues raised in the oral argument and the property owner's brief. The nature of these issues is not easy to figure out, since the Order refers merely to specific page numbers in the oral argument transcript and the brief. At the Inverse Condemnation blog, prominent takings lawyer Robert Thomas plausibly suggests that these might be references to a dubious argument offered not by the parties, but by the Solicitor General in an amicus brief for the federal government.

The Solicitor General's argument attracted only brief attention in the original oral argument. But it's possible some of the justices now want to take a closer look at it, perhaps as a strategy for building a broader consensus on the Court - and a way to mitigate the Catch 22 aspect of Williamson County without overruling that precedent completely.

What is the SG's argument? Frankly, it doesn't make much sense to me (or to most other commentators). The standard interpretation of Williamson County is that a property owner cannot bring in federal court a takings claim alleging that a state or local government has taken his property without paying the "just compensation" required by the Fifth Amendment unless he has first "exhausted" all possible state court options. As the theory goes, the state has not really denied pay compensation until that happens. The solicitor general, however, argues that this constraint only applies to cases brought under 42 U.S.C. § 1983 (a federal statue authorizing law suits for violations of constitutional rights), but not ones brought to federal court under 28 USC § 1331, the law giving federal courts jurisdiction over "all civil actions arising under the Constitution, laws, or treaties of the United States." Robert Thomas gives the best explanation of this argument I have seen, including a helpful analogy to Star Trek producers' dubious efforts to "retcon" the evolution of Klingon foreheads:

Retroactive continuity -- or "retconning" -- is, according to that authoritative source Wikipedia, a "literary device in which established facts in a fictional work are adjusted, ignored, or contradicted by a subsequently published work which breaks continuity."
For example, compare the real-world explanation for why the 1960's Star Trek show's Klingons didn't have butt heads, but the later-produced shows and movies did. The real-world reason was that the TV show had a bare-bones budget, so couldn't afford the required intricate make-up. The later-produced stuff, having larger budgets, could. But to those concerned with an in-universe explanation that had to line up with the production realities, it turned out to be a big source of contention. Fandom as well as the later shows' writers struggled to come up with a narrative that accounted for both Klingons with butt heads, and those without.
Sorry for the impossibly nerdy detour, but that's what the Solicitor General's argument in Knick v. Township of Scott reminded us of....
And now having gone back and reviewed the SG's difficult-to-comprehend argument, we are reminded of retconning. Because it seems to reach back and question the "continuity" of what were, we thought, "established facts."
Recall that in Williamson County, it was the SG's amicus brief that raised the whole ripeness argument. Neither party did. Read the Brief Amicus Curiae of Western Manufactured Housing Communities Association in Knick for the details on how the argument was first raised in Williamson County by the SG's brief, as a substantive requirement under the Fifth Amendment. There's been no constitutional wrong, the brief argued, until the state or local government has denied compensation. We disagree with the rationale, but we get the logic.
Flash forward three decades, and you have the SG now coming in on the side of the property owner to argue that federal court is an option in Fifth Amendment takings cases. Other than saying "whoops, we were wrong," how was the SG going to frame the government's argument? Retconning, that's how....
First, we think the goal of the SG's brief was to both come in on the side of property owners, while at the same time preserving the rule that compensation need not be provided contemporaneous with a taking, provided there are reasonable, certain, and adequate means to secure compensation after the taking. That rule, after all, allows quick takings and statutory takings, and forces property owners alleging an inverse condemnation or regulatory taking against the federal government to pursue compensation in the Court of Federal Claims in most instances. Above all else, the SG wants to preserve that line of decisions.
[T]he only way to do that was in a way that didn't undermine the Williamson County rationale first advanced by the SG's amicus was to retcon a new theory. And while it took no less that four reads of the SG's brief, here's our best summary of that retroactive continuity theory:
  • [1.] Williamson County was only a ruling that under 42 U.S.C. § 1983 a "takings" claim isn't ready for federal court and there's no federal constitutional violation until the state has both taken property, and refused to pay compensation.
  • [2.] Consequently, a takings claim does not trigger a § 1983 claim until the state has denied compensation, because any constitutional violation isn't complete until the state has denied compensation. Thus, the Court need not overrule Williamson County. You still must pursue compensation in state court via a state law inverse condemnation claim and lose it, before you can even state a ripe claim under §1983.
  • [3.] But (and there's always a "but," isn't there?) an inverse condemnation claim in state court to get compensation under state law is not a § 1983 claim, but independently implicates a substantial federal question.... And thus, federal jurisdiction may be invoked independently of whether there's been a federal constitutional violation, or a ripe cause of action under § 1983. (Knick's Reply Brief (page 4, n.5) rightly refers to this as a "puzzling" argument.)
  • [4.] The embedded takings question is a "federal interest in a state claim" (our characterization, not the SG's) and that is enough to trigger federal question jurisdiction under 28 U.S.C. § 1331 (arising under jurisdiction).

There's a certain cleverness to this argument. If it prevails, it will allow property owners to bring many takings cases in federal court, but also allow the federal government to take property without having to pay for it immediately (the main motivation for the SG's intervention, most likely), and enable the Supreme Court to eliminate a ridiculous Catch 22 created by Williamson County without having to actually overrule that decision. But ultimately, it is no more persuasive than the Star Trek producers' heroic but nonetheless ridiculous efforts to come up with an in-universe explanation of the variation in Klingon foreheads.

There are two obvious flaws in the SG's argument. First, nothing in Williamson County indicates that its logic does not apply to cases brought under 28 U.S.C. § 1331. Second, and much more importantly, Section 1331 only gives federal courts jurisdiction over "civil actions arising under the Constitution, laws, or treaties of the United States." But the whole point of Williamson County is that there is no action "arising under" the Takings Clause of the Fifth Amendment, until the government has refused to pay compensation, and there is no sufficiently definitive refusal until the property owner has "exhausted" all possible state court remedies. For reasons I summarized here, here and in an amicus brief in Knick, I think this theory is badly wrong, and at odds with the way the Supreme Court treats other constitutional rights claims, where no such "exhaustion" of state court remedies is required. The Takings Clause is violated from the moment the government seizes property without paying for it, not the moment when a state court reaches a decision on the issue. As Chief Justice John Roberts noted in the earlier oral argument, "the compensation that is due runs from the moment of the taking... In other words, if it takes you six months to adjudicate the -- the claim and you say, well, this is how much you owe, you owe interest going all the way back to the point at which the property was taken." But if the reasoning of Williamson County is correct, the theory precludes Section 1331 claims no less than Section 1983 claims.

The SG's theory might be a lesser evil compared to just reaffirming the traditional interpretation of Williamson County. It would significantly reduce the harm done by that precedent, though at the cost of making it even more incoherent than it already is. But it would be better still if the Supreme Court relied on Vulcan logic rather than Klingon forehead retconning. As a Vulcan philosopher put it, "[l]ogic is the cement of our civilization with which we ascend from chaos using reason as our guide." Logic says that Williamson County is just plain wrong, and should be gotten rid of, not "retconned."

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  • Eddy||

    The Klingons wrinkled their foreheads while struggling to understand the reigning judicial doctrine.

  • bernard11||

    I wonder about those foreheads.

    Are those lines supposed to be blood vessels? From an evolutionary point of view it seems very unlikely that major vessels would be sticking out on the forehead, highly vulnerable to a blow on the head, or even just a hard accidental bump.

  • Remember to keep it all polit||

    Testicles outside the body would seem equally problematic. Yet here we are. More on point, major leg and arm blood vessels are close enough to the surface to make the distinction meaningless. If evolution had really found them dangerous, they'd be tucked inside bones.

  • James Pollock||

    Arteries are mostly buried down near the bones, but veins are right there on the surface (depending on how much subcutaneous fat is present).
    Human beings have a lot of circulation to the head, so scalp injuries bleed profusely. Teaches those dumb animals to protect their heads when they're little. The ones too stupid to learn that don't reach breeding age, and the ones that do, do.

  • MatthewSlyfield||

    On the other hand, sperm cells are temperature sensitive. If they get to warm, they die. The males in most warm blooded animals have external testicles for cooling purposes.

  • Brett Bellmore||

    It's a great example of how things can get locked in, in a way that's resistant to evolution fixing them: There's this crucial enzyme in sperm, (IIRC) which is temperature sensitive, and it can't mutate away from being temperature sensitive because any one mutation in that direction would render it non-functional, and thus automatically not be passed on. You'd need multiple simultaneous mutations to fix the problem.

    So we're stuck with testes that require the temperatures that prevailed in the body in the far distant evolutionary past. Even the warm blooded animals that have internal testes have alternate cooling arrangements.

    It's on my list for things to fix once genetic engineering is working out.

  • James Pollock||

    The womenfolk have all their reproductive plumbing inboard. You're of the opinion that they're better off?

    Larry Niven's SF works posit that this is part of a now-discarded third-stage of human development, after adulthood and reproduction is completed. In that fictional sphere, they would go the way of a tadpole's tail or a butterfly's excess of legs.

  • Brett Bellmore||

    I've been of the opinion that they're better off in that regard since the first time I got kicked in the balls.

    I suppose that would be a reasonable trade for a Protector's lifespan.

  • James Pollock||

    "since the first time I got kicked in the balls."

    How many times did it take before you stopped inviting people to kick you in the balls?

  • Brett Bellmore||

    Boney ridges for head butting, I think.

  • bernard11||

    Ah. Is that what the reference to "butt heads" is all about?

  • Brett Bellmore||

    Yup.

  • gormadoc||

    They're the remnants of an exoskeleton Klingons had long before in their evolutionary history.

  • Rossami||

    I believe they are meant to imply bone ridges - protective stiffeners for an otherwise fragile cranium against blunt force trauma.

    By the way, it's worth noting that humans (real ones, not Star Trek) have some pretty major blood vessels in their foreheads. Unretouched pictures of Angelina Jolie show a very prominent vein that is, yes, sticking out on the forehead and highly vulnerable to a blow.

  • gormadoc||

    It should be pointed out in your graphic that the Klingons on top aren't just the same species but are actually the same individual Klingons, just from later productions.

  • gormadoc||

    From earlier productions, of course. Got twisted around.

  • Eddy||

    And I hate to sound like a naive, un-nuanced absolutist, but it says that private property "shall not be taken for public use without just compensation." I don't see how that leaves room for "we're taking your property now and we'll give you some compensation later as soon as we've figured out the amount."

  • MatthewSlyfield||

    Some idiot arguing that the takings clause doesn't bar and doesn't require compensation for takings for private (non-public) use in 3....2...1...

  • ||

    It doesn't cover private taking because only government can lawfully take -- taking unlawfully falls under the category of robbery.

  • MatthewSlyfield||

    The government has taken property for essentially private use, taking property by eminent domain and then handing it over to private developers.

  • James Pollock||

    Yes. This has happened. And the USSC said "no, the Constitution of the United States doesn't preclude this."

  • Brett Bellmore||

    The USSC once said that the 14th amendment didn't preclude Jim Crow. When a majority on the Supreme court like a policy, it can be really, really difficult to get them to care that the Constitution forbids it.

  • James Pollock||

    " it can be really, really difficult to get them to care that the Constitution forbids it."

    Except for the fact that until they say it does, it doesn't. Under our current Constitutional system, anyway.

  • Brett Bellmore||

    Yeahnope. Not into that legal realism garbage. Judges are as capable of being wrong as anybody.

  • James Pollock||

    "Some idiot arguing that the takings clause doesn't bar and doesn't require compensation for takings for private (non-public) use"

    You're half right.

    The public can take property, if they pay just compensation, via eminent domain. The use they put it for doesn't have to be directly for public use, thanks to rational basis review. The public benefits from higher tax revenues from developed land.

    This wasn't a popular decision, so some states' voters amended their state constitutions to prevent such cases. Most, however, did not.

  • James Pollock||

    " I don't see how that leaves room for "
    'we're taking your property now and we'll give you some compensation later as soon as we've figured out the amount.'"

    There are two types of cases that come up.
    1) the former and new owners don't agree on just how much money "just compensation" requires.

    2) The owner argues that they've had something taken from them, but they still retain ownership of the property. They want compensation for (whatever it is that they're not allowed to do with their property).

    Both of these tend to require that the amount of compensation be set some time after the taking (if, indeed, there was one). The amendment requires "just" compensation, which to me, at least, implies some time and effort determining just what is "just".

    Hypothetical:
    I own a piece of land which I've been using to dump coal ash on, from the local power plant. The state comes along and passes a regulation that says you can't keep coal ash on your property unless you take steps to prevent it from seeping into the water table or blowing onto neighboring lands. Complying with the regulation will cost me some money, and so will not being allowed to dump any more coal ash on the land. Has something been "taken" from me? What is the "just compensation" I am owed?

  • James Pollock||

    Second hypothetical:
    I own a piece of land in the hills above town. It's natural and unspoiled, mostly because the county never put in any roads that can be used to reach it. The county finally puts in a road, and I submit my building permit request. But wait: The road construction revealed that the land is unstable; there's an ancient landslide. The city turns down my building permit because the land I own is "unsuitable for home construction". Taking? Am I owed for the undeveloped, undevelopable land, or for the house I was gonna build?

  • bernard11||

    Second case:

    Even clearer than the first. You get nothing. There is no house there, and won't be.

    Nothing changed. You just got more information, which reduced the value of your land, but it's the information, not the government, that reduced the value.

  • Brett Bellmore||

    Not exactly; It IS the government that refused him permission to build on his property. Maybe the new information prompted them to do it, but they did it, not the information.

  • bernard11||

    OK, not exactly. But tell me what value was actually taken?

    The value of the lot depended on the ability to build there. Now, I suppose you could argue that someone might one to build regardless of whatever risk there was, and that hence there was some value attached to that. But once the information about the instability became known that wasn't very much.

  • James Pollock||

    The point being, deciding how much (if anything) I'm owed won't happen right away. Both hypotheticals are designed so that there isn't an easy answer.

  • ||

    The government assesses the value of a vacant lot and a lot with a nice house on it differently for property tax purposes. Subtract the former from the latter and that is what the government has taken.

  • bernard11||

    Not so simple, Gindjurra.

    One source of value for a lot is the possibility that a house could be built there. If that is discovered to be impractical the lot is worth less than a similar lot on which it is reasonable o build.

  • James Pollock||

    "One source of value for a lot is the possibility that a house could be built there."

    I'm the law-abiding sort, so if they won't give me a building permit, there's no possibility that a house could be built there.
    We went from one reason a house couldn't be built there (no access) to another reason a house can't be built there (no permit).

    I actually have a good chance of winning, here. By refusing to issue a permit instead of laying out what engineering needs to be done to allow for building, I've actually had a regulatory taking. But... what will I win?

  • bernard11||

    We went from one reason a house couldn't be built there (no access) to another reason a house can't be built there (no permit).

    Well, is it the inability to get a permit, or the fact that the land is unstable?

    Suppose there were no requirement for a permit, but it became known that the land was unstable. No, there might be someone willing to buy the lot and take the risk, but my guess is that they won't pay very much to buy the lot.

    So your damages are the difference between what such a purchaser might pay and the value of the undeveloped lot. Not much, is my guess.

  • James Pollock||

    "Well, is it the inability to get a permit, or the fact that the land is unstable?"

    People will build in lots of circumstances where building is unwise, which is why there's building permit restrictions in the first place.

    Ground that is unstable can, in most cases, be made sufficiently stable to build on, with sufficient engineering effort... but the value proposition doesn't always make it economically feasible.

    But again you're trying to introduce factors into the hypothetical that aren't there... in this case, a hypothetical buyer. There is no hypothetical buyer. There's just me, my little plot of land in the hills, and a county that doesn't want me to build on it for perfectly reasonable reasons.

    "your damages are the difference between what such a purchaser might pay and the value of the undeveloped lot"

    The value of the lot literally IS what it would fetch on the open market.

    Focus on the hypo.
    I owned the land before. I own the land after. What has been taken from me?

  • James Pollock||

    "Subtract the former from the latter and that is what the government has taken."

    No, it isn't, unless your cost of materials and labor are $0.

    If I spend $200,000 to build a house that's worth $200,000, and THEN they take it away from me, I'm out $200,000.
    If I spend $0 to not build a house that's worth $0, and THEN they take it away from me, I'm out ___?___

  • bernard11||

    I don't think you are owed anything.

    The value of your land as a dump depended on being allowed to damage your neighbors.

    If the state lowers the speed limit on a nearby road are you entitled to compensation for the reduced value of your car?

  • James Pollock||

    "The value of your land as a dump depended on being allowed to damage your neighbors."

    It's my hypothetical, so you don't get to add details not in the original. Look again. There's nothing in there about any neighbors being damaged. There's nothing in there about any neighbors even alleging they've been damaged.

  • bernard11||

    Details not in the original?

    Excuse me. You are dumping ash into the water table, and some ash is blowing onto neighboring land.

    That's right there in your hypothetical.

  • ||

    No it's not. The government assumed that such precautions are necessary, but if depending on the nature of the land and the size of the parcel, they might not be. Requiring them when they are not necessary is unnecessary.

  • bernard11||

    Requiring them when they are not necessary is unnecessary.

    Not necessary for what?

    1. I live next door to the lot. I don't want coal ash blowing onto my property. It's a standard Coase scenario. Who has the relevant property right, and how is this decided?

    2. Not enough coal ash gets into the water from your property to make a significant difference. But there are lots of other activities that also seep stuff we don't want into the water, and the total is harmful to health. Why doesn't the community's right to clean water outweigh your right to dump crap?

  • James Pollock||

    " I live next door to the lot. I don't want coal ash blowing onto my property. It's a standard Coase scenario. Who has the relevant property right, and how is this decided?"

    If you want to successfully sue me, you have to first show that coal ash is blowing from my property onto yours. It's not. You lose.

    "Not enough coal ash gets into the water from your property to make a significant difference."

    NO coal ash gets into the water from my property. 0.00 ppm.

    " Why doesn't the community's right to clean water outweigh your right to dump crap?"

    Because they're not in conflict in this hypothetical.

  • James Pollock||

    "That's right there in your hypothetical."

    Except it's not. You're trying to add these details. Stop doing that.

  • Dilan Esper||

    I wouldn't be very confident. The Knicks almost never win.

  • Bubba Jones||

    "Justice Brett Kavanaugh's nomination was still held up in the Senate in order to give time for the FBI to investigate sexual assault allegations against him."

    That is certainly one interpretation of the events. It's more likely that everyone simply played their part in the partisan Kabuki theater.

  • James Pollock||

    The court said "we're not waiting for you, Senate, we've got work to do."

  • James Pollock||

    "The evolution of Klingon foreheads. It's not easy to explain how the Star Trek original series Klingons (top row) are really the same species as those from later movies and series"

    Klingon women find headbumps to be sexually desirable.

    And I would know. I'm not just a member of the Headbumps Club for Klingons, I'm also the President!

  • Perseus`||

    "in a case where a decision in favor of the property owner might require overruling or severely limiting a 33-year old precedent. "

    The last decision in the line is like a caboose on a train. Let's go from the caboose all the way up to the engine, and see what really went on, and let's think it all through. You might get up to the [engine] and find out: Oh, there's nobody in the engine.

    There's nobody in the engine. Overrule the stupid precedent already.

  • scribe||

    As I recall it, Worf was once confronted with the question of why earlier generation Klingons looked the way they did and answered in a tone of consternation and shame which brooked no further discussion: "it is something we do not talk about". That was how the producers handled it.
    (I'm sure someone will reach for their concordance/show bible and correct me if I'm wrong.)

    On the topic of Klingon brow ridges, I once second-chaired a trial for a plaintiff whose head looked like he had one. We were suing the bar where he'd taken a tire iron across the skull from behind, wielded by a drunk who thought (mistakenly) the plaintiff was the guy who'd been hittin' on his girlfriend. That guy had been thrown out of the bar by the time the drunk came back with the tire iron, and the plaintiff had the misfortune of sitting on the recently-vacated barstool.

  • gormadoc||

    "We do not discuss it with outsiders."

  • Krayt||

    IIRC somewhere in the vast expanded book universe, some writer came up with the idea that the smooth-headed Klingons were were surgically altered so they wouldn't be as scary to other races and thus the Klingons could get along better.

    Clever, but no Klingon would mutilate themselves to get along better, ashamed of their looks.

    Hence Worf's embarrassment and "We do not talk about it."

  • ||

    Which makes no sense, because Klingons LIKE being feared and getting into fights.

  • James Pollock||

    "Clever, but no Klingon would mutilate themselves to get along better, ashamed of their looks."

    On the other hand, other, bigger Klingons might mutilate some other Klingons if they thought they could benefit by it.

  • GabrielSyme||

    "As I recall it, Worf was once confronted with the question of why earlier generation Klingons looked the way they did and answered in a tone of consternation and shame which brooked no further discussion: "it is something we do not talk about". That was how the producers handled it."

    While that's true, in Enterprise (the Scott Bakula series) they explained it as being the result of genetic experimentation/eugenics/whatever: http://memory-alpha.wikia.com/.....ment_virus

    Of course Enterprise itself decided it itself was a retcon by implying that the entire series was a holodeck simulation being experienced by Riker from Next Gen.

  • TheAmazingEmu||

    Not really. The final episode had Riker replaying events from the past on the Holodeck, but he never implied he was making up those events.

    Archer's dog was also referenced in the recent Star Trek movie, fwiw, making it the only series part of both continuities.

  • MatthewSlyfield||

    "Archer's dog was also referenced in the recent Star Trek movie, fwiw, making it the only series part of both continuities."

    It would be part of both in any case, as the events of the Enterprise series predate the point of divergence between the old canon and the new re-boot movies.

  • James Pollock||

    "Archer's dog was also referenced in the recent Star Trek movie, fwiw, making it the only series part of both continuities."

    Unless you remember that Leonard Nimoy was in both.

  • James Pollock||

    There was the next gen episode where it turned out that all the different species of the quadrant were seeded with DNA with embedded holographic imaging. That was the retcon for "why do all the aliens look like humans with bits of foam rubber glued to their faces?"

    The original series had a limited budget for effects, but had WAY better aliens, overall.

    There's also the DS9 episode "more tribbles, more troubles". That one was made by compositing the modern actors into the original series episode "The trouble with tribbles". That one had the Klingon issue front and center, since the original series Klingons feature prominently in the episode, but Worf had moved over to DS9 by the time the episode was produced.

  • gormadoc||

    The DS9 episode is "Trials and Tribble-ations". "More Tribbles, More Troubles" is from TAS.

  • James Pollock||

    I stand corrected. Should have looked it up. Grr.

  • Brett Bellmore||

    Some fanfiction handled it by claiming that the Klingons had earlier regarded humans as not worthy of meeting actual Klingons, and had created half-human clones to take on that odious task.

    Then changed their minds after getting their butts kicked enough times. But I don't know that's canon.

  • James Pollock||

    "But I don't know that's canon."

    I know that it's not canon.
    The original series episode where the rock-monsters wanted to experiment with good and evil, with Kirk and Spock teamed with Abraham Lincoln on the good side, they also created a Kahless the Klingon for the bad side, and he was an original-series Klingon, and not a head-bump Klingon.

    The best retcon I encountered claimed that "Klingon" was the name of the Empire, not the species, and the Empire had multiple species in it, from multiple different worlds, just like the Federation does. I don't remember which source that was, though. Might have been comics, or one or more of the novels. I didn't read many of the novels because there was no shared continuity between them, and they were often mutually exclusive with each other's timelines and story arcs.

  • MatthewSlyfield||

    The closest to a canon answer came from the prequel series Enterprise.

    The Klingons got a hold of some human augment embryos left over from Earth's Eugenics Wars and tried to use them to kick start their own augment program.

    The result of that attempt was a contagious virus that turned normal Klingons into the smooth headed Klingons seen in TOS. The victims of this augment virus weren't clones, but they were in effect, human/Klingon hybrids.

  • Brett Bellmore||

    That actually makes a little bit of sense... for Hollywood values of "makes sense", anyway.

  • RobinGoodfellow||

    As an aside, "buttheads" is not the proper terminology for the newer style of Klingons.

    Buttheads is the properly reserved for the Talosians of the original series pilot with Capt. Pike (which was not aired as a pilot, but was later subsumed into a two-part episode of the original series with Capt. Kirk).

  • James Pollock||

    (showing off)
    The original pilot title was "The Cage" and the episodes it was edited into was "The Menagerie, Part 1" and "The Menagerie, Part 2". Calling them "buttheads" is rude. Yes, they were generally hostile to strangers but they made with the welcome for Captain Pike and the nice lady.

  • mse326||

    I could be missing something but wasn't the idea of section 1983 that it waives the states sovereign immunity for violations of federal constitutional law? How does invoking general federal question jurisdiction work if the state has sovereign immunity? Where is the sovereign immunity stripping statute there?

  • James Pollock||

    Immunity and jurisdiction are different questions. Before you can argue about immunity (and whether it applies or not) you first have to establish that the court you're in can hear the case at all. Federal courts have jurisdiction over disputes involving federal law, but only some disputes involving state law. 1L students spend about 3 weeks learning about it in "Civil Procedure".

  • ||

    Yeah, but if state law violates federal law, then the matter is clearly in the federal court's jurisdiction.

  • mse326||

    I get that. My point is that relying on federal court jurisdiction instead of 1983 doesn't work as a "fix" because the state would then claim immunity. So saying they can claim section 1331 jurisdiction is absurd as a solution.

  • James Pollock||

    The state can claim sovereign immunity in state court. because the state is sovereign in state court; the state courts are the state's. They aren't automatically sovereign in federal court unless the federal court is feeling generous.

  • Eddy||

  • ||

    Only one thing need be said about the foreheads thing: Hab SoSlI' Quch!

  • apedad||

    "Takings cases often split the Court along right-left ideological lines."

    Prof. Somin, what leads you to this conclusion?

    It seems like many cases are decided based on procedural and due process lines and not ideological (spacs added): https://law. wustl.edu/landuselaw/ articles/brief_hx_taking. htm.

  • TheAmazingEmu||

    While interpreting a statute and a Constitutional provision differently even with the same language is not new, I agree that the SG's argument isn't the strongest.

    It seems more reasonable to say either that you can sue in Federal court for a systematic policy of denying just compensation (or undervaluing it) or you can collaterally attack a state judgment denying just compensation (or both) as ways to limit Williamson County without overturning it. Or just overturn it.

  • James Pollock||

    Or modify it such that federal standing exists the FIRST time the state refuses to compensate, instead of requiring exhaustion of state remedies.
    The down side (from the point of view of the federal courts) is that means more cases on the federal docket. But it's logically consistent.

  • BillyG||

    It's not easy to explain how the Star Trek original series Klingons (top row) are really the same species as those from later movies and series (bottom row).

    Limited Budgets. Nice, easy, true to history explanation. Next question?

  • James Pollock||

    Your primitive 20th century entertainment devices cannot show the true majesty of the Klingon species. All you get is a rough approximation. You think the Klingons got it bad? Take a look at what the Gorn look like, or the Organians, or the First Federation.

  • Bob from Ohio||

    Law professors should avoid pop culture.

  • Bob from Ohio||

    The Klingon discussion here is much more interesting than the law one.

    The Original Series Klingons looked much more fearsome than the big head ones. Compare Michael Anasara. The big heads distract.

    No space faring military empire would wear such stupid clothing or long wild hair either.

  • James Pollock||

    "The Original Series Klingons looked much more fearsome than the big head ones."

    I had the opportunity to attend an event Michael Dorn was appearing at. That guy is imposing even without the Klingon wardrobe and makeup. He's a big dude. The original series guys weren't scary. (Presumably, in the Mirror, Mirror universe, they don't even have facial hair.)

  • jello.beyonce||

    It's funny that a "Libertarian"-minded Professor, whom frequently contributes to a "Libertarian" site, and whom often calls for limited government, works for a PUBLIC university that receives some 22-23 percent of its budget from state government, VIA TAXPAYER MONIES, and that 73 percent of its students receive FEDERAL financial aid.

    A GOVERNMENT funded PUBLIC university?
    Jesus, how much more bureaucratic can you get?

    Federally funded financial aid?
    HOW VERY SOCIALIST.

    THIS IS WHY "LIBERTARIANISM" IS A TOTAL SHAM.

    "LIBERTARIANS" ARE THOSE SEEKING GOVERNMENT MONIES AND PROTECTIONS FOR THEMSELVES, BUT WHINING ABOUT THE SAME OF OTHERS.

    Do as I say, not as I do?

    "Even despots accept the excellence of liberty. The simple truth is that they wish to keep it for themselves and promote the idea that no one else is at all worthy of it."
    -Alexis de Tocqueville-

    P.S. - In violation of U.S. GOVERNMENT COPYRIGHT LAWS, yes, highly-interventionist government PROTECTIONISM (very not "LIBERTARIAN"), I've downloaded FREE copies of Ilya Somin's books, despite the fact he's tried hard to protect them under BUREAUCRATIC/GOVERNMENT protectionist policies.

  • James Pollock||

    "In violation of U.S. GOVERNMENT COPYRIGHT LAWS, yes, highly-interventionist government PROTECTIONISM (very not "LIBERTARIAN"), I've downloaded FREE copies of Ilya Somin's books"

    OOOOH! You're such a bad boy! You must get ALL the chicks...

  • James Pollock||

    If you needed an example of a retcon, and you were dead-set on using Star Trek, I can think of lots of different examples.

    For example, sometimes Captain Kirk looks like William Shatner, sometimes like Chris Pine, and one time like Sandra Smith.

    Or, sometimes the Romulans have Romulan ships, and sometimes they have Klingon ships.

    Ultimately, comics is the better source for retcons. Sometimes (literally any comics character EXCEPT Martha Wayne, Thomas Wayne, or Ben Parker) is dead, and sometimes they aren't. OK, to be fair, Star Trek borrowed this, as well... every major character in Star Trek has been dead at least once, and sometimes more than once.

  • Eddy||

    You're referring to Captain Kirk's various regenerations and the Klingon Empire's arms sales to the Romulans?

    What's to explain?

  • James Pollock||

    "You're referring to Captain Kirk's various regenerations"

    He's not a Time Lord, despite a certain propensity for time travel.

    " the Klingon Empire's arms sales to the Romulans?"

    That's the retcon, yes. To cover for the fact that the effects department had 3 Klingon cruiser miniatures but only one Romulan Bird of Prey miniature. Then we had a shot that called for 3 Romulan ships. What to do, what to do... we could build a couple more Romulan ship miniatures, but that costs money and takes time. Just use the models we have. The rubes won't know the difference.

  • Eddy||

    "He's not a Time Lord, despite a certain propensity for time travel."

    If it quacks like a duck...I'm just saying, he does a lot of time travel for someone who totally isn't a Time Lord.

  • James Pollock||

    So do Dirk Gently and Ford Prefect. Not Time Lords. Copyright isses, I'm assuming, though I'm about 99.994% sure there's some fanfic out there with a crossover.

  • Brett Bellmore||

    I think Ben Parker wound up alive in an episode of What If, where Aunt May died, instead.

  • James Pollock||

    "What if" is expressly non-canon. There's a What If? where May was bitten instead of Peter, too.

  • Eddy||

    Too bad we're so hung up on radiation safety nowadays. Back in the 60s people were routinely exposed to radiation and became spider-powered, or turned into giant green monsters, etc.

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