Taking Nevada

Justice Kennedy has announced his retirement from active status at the Supreme Court of the United States.  Justice Kennedy’s jurisprudence was often viewed as favoring ad hoc multi-factor enquiries.  The recent Murr decision is a strong example of this mode of reasoning.

Multi-factor tests, especially as applied in Murr can be very useful in resolving specific cases, because they focus on weighing as many variables against one another as possible, to determine the best outcome.  But, those tests tend to make for very difficult precedent, because it can be incredibly difficult to understand how each factor should be weighted.  And, in many cases, the unique facts of the precedent case simply don’t exist.  This makes factor-based tests difficult to apply, and makes it difficult for both landowners and condemning entities to accurately understand the relative rights, responsibilities, and remedies of each party.

Based on the short-list of possible successors, it appears that the majority of them are oriented less towards multi-factor ad hocery, and more towards bright line rules.  It will be very interesting to see if the Court’s emerging jurisprudence becomes more definite and increases predictability and certainty in the area of eminent domain.