This case began with attempts by respondent Del Monte Dunes and its predecessor in interest to develop a parcel of land within the jurisdiction of the petitioner, the
The petitioner contends that the regulatory takings claim should not have been decided by the jury and that the Court of Appeals adopted an erroneous standard for regulatory takings liability. We need not decide all of the questions presented by the petitioner, nor need we examine each of the points given by the Court of Appeals in its decision to affirm. The controlling question is whether, given the city's apparent concession that the instructions were a correct statement of the law, the matter was properly submitted to the jury. We conclude that it was, and that the judgment of the Court of Appeals should be affirmed.
I
A
The property which Del Monte Dunes and its predecessor in interest (landowners) sought to develop was a 37.6-acre ocean-front parcel located in the city of Monterey, at or near the city's boundary to the north, where Highway 1 enters. With the exception of the ocean and a state park located to the northeast, the parcel was virtually surrounded by a railroad right-of-way and properties devoted to industrial, commercial, and multi family residential uses. The parcel itself was zoned for multi family residential use under the city's general zoning ordinance.
The natural flora the ice plant encroached upon included buckwheat, the natural habitat of the endangered Smith's Blue Butterfly. The butterfly lives for one week, travels a maximum of 200 feet, and must land on a mature, flowering buckwheat plant to survive. Searches for the butterfly from 1981 through 1985 yielded but a single larva, discovered in 1984. No other specimens had been found on the property, and the parcel was quite isolated from other possible habitats of the butterfly.
B
In 1981 the landowners submitted an application to develop the property in conformance with the city's zoning and general plan requirements. Although the zoning requirements permitted the development of up to 29 housing units per acre, or more than 1,000 units for the entire parcel, the landowners' proposal was limited to 344 residential units. In 1982 the city's planning commission denied the application
The landowners once again reduced the scope of their development proposal to comply with the city's request, and submitted four specific, detailed site plans, each for a total of 190 units for the whole parcel. Even so, the planning commission rejected the landowners' proposal later in 1984. Once more the landowners appealed to the city council. The council again overruled the commission, finding the proposal conceptually satisfactory and in conformance with the city's previous decisions regarding, inter alia, density, number of units, location on the property, and access. The council then approved one of the site plans, subject to various specific conditions, and granted an 18-month conditional use permit for the proposed development.
The landowners spent most of the next year revising their proposal and taking other steps to fulfill the city's conditions. Their final plan, submitted in 1985, devoted 17.9 of the 37.6 acres to public open space (including a public beach and areas for the restoration and preservation of the buckwheat habitat), 7.9 acres to open, landscaped areas, and 6.7 acres to public and private streets (including public parking and access to the beach). Only 5.1 acres were allocated to buildings and patios. The plan was designed, in accordance with
After detailed review of the proposed buildings, roads, and parking facilities, the city's architectural review committee approved the plan. Following hearings before the planning commission, the commission's professional staff found the final plan addressed and substantially satisfied the city's conditions. It proposed the planning commission make specific findings to this effect and recommended the plan be approved.
In January 1986, less than two months before the landowners' conditional use permit was to expire, the planning commission rejected the recommendation of its staff and denied the development plan. The landowners appealed to the city council, also requesting a 12-month extension of their permit to allow them time to attempt to comply with any additional requirements the council might impose. The permit was extended until a hearing could be held before the city council in June 1986. After the hearing, the city council denied the final plan, not only declining to specify measures the landowners could take to satisfy the concerns raised by the council but also refusing to extend the conditional use permit to allow time to address those concerns. The council's decision, moreover, came at a time when a sewer moratorium issued by another agency would have prevented or at least delayed development based on a new plan.
The council did not base its decision on the landowners' failure to meet any of the specific conditions earlier prescribed by the city. Rather, the council made general findings that the landowners had not provided adequate access for the development (even though the landowners had twice
C
After five years, five formal decisions, and 19 different site plans, 10 Tr. 1294-1295 (Feb. 9, 1994), Del Monte Dunes decided the city would not permit development of the property under any circumstances. Del Monte Dunes commenced suit against the city in the United States District Court for the Northern District of California under 42 U. S. C. § 1983, alleging, inter alia, that denial of the final development proposal was a violation of the due process and equal protection provisions of the Fourteenth Amendment and an uncompensated, and so unconstitutional, regulatory taking.
The District Court dismissed the claims as unripe under Williamson County Regional Planning Comm'n v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985), on the grounds that Del Monte Dunes had neither obtained a definitive decision as to the development the city would allow nor sought just compensation in state court. The Court of Appeals reversed. 920 F.2d 1496 (CA9 1990). After reviewing at some length the history of attempts to develop the property, the court found that to require additional proposals would implicate the concerns about repetitive and unfair procedures expressed in MacDonald, Sommer & Frates v. Yolo
On remand, the District Court determined, over the city's objections, to submit Del Monte Dunes' takings and equal protection claims to a jury but to reserve the substantive due process claim for decision by the court. Del Monte Dunes argued to the jury that, although the city had a right to regulate its property, the combined effect of the city's various demands—that the development be invisible from the highway, that a buffer be provided between the development and the state park, and that the public be provided with a beach—was to force development into the "bowl" area of the parcel. As a result, Del Monte Dunes argued, the city's subsequent decision that the bowl contained sensitive buckwheat habitat which could not be disturbed blocked the development of any portion of the property. See 10 Tr. 1288-1294, 1299-1302, 1317 (Feb. 9, 1994). While conceding the legitimacy of the city's stated regulatory purposes, Del Monte Dunes emphasized the tortuous and protracted history of attempts to develop the property, as well as the shifting and sometimes inconsistent positions taken by the city throughout the process, and argued that it had been treated in an unfair and irrational manner. Del Monte Dunes also submitted evidence designed to undermine the validity of the asserted factual premises for the city's denial of the final proposal and to suggest that the city had considered buying, or inducing the State to buy, the property for
At the close of argument, the District Court instructed the jury it should find for Del Monte Dunes if it found either that Del Monte Dunes had been denied all economically viable use of its property or that "the city's decision to reject the plaintiff's 190 unit development proposal did not substantially advance a legitimate public purpose." App. 303. With respect to the first inquiry, the jury was instructed, in relevant part, as follows:
With respect to the second inquiry, the jury received the following instruction:
The essence of these instructions was proposed by the city. See Tr. 11 (June 17, 1994).
The jury delivered a general verdict for Del Monte Dunes on its takings claim, a separate verdict for Del Monte Dunes on its equal protection claim, and a damages award of $1.45 million. Tr. 2 (Feb. 17, 1994). After the jury's verdict, the District Court ruled for the city on the substantive due process claim, stating that its ruling was not inconsistent with the jury's verdict on the equal protection or the takings claim. App. to Pet. for Cert. A-39. The court later denied the city's motions for a new trial or for judgment as a matter of law.
The Court of Appeals affirmed. 95 F.3d 1422 (CA9 1996). The court first ruled that the District Court did not err in allowing Del Monte Dunes' regulatory takings claim to be tried to a jury, id., at 1428, because Del Monte Dunes had a right to a jury trial under § 1983, id., at 1426-1427, and whether Del Monte Dunes had been denied all economically viable use of the property and whether the city's denial of the final proposal substantially advanced legitimate public interests were, on the facts of this case, questions suitable for the jury, id., at 1430. The court ruled that sufficient evidence had been presented to the jury from which it reasonably
The questions presented in the city's petition for certiorari were (1) whether issues of liability were properly submitted to the jury on Del Monte Dunes' regulatory takings claim, (2) whether the Court of Appeals impermissibly based its decision on a standard that allowed the jury to reweigh the reasonableness of the city's land-use decision, and (3) whether the Court of Appeals erred in assuming that the rough-proportionality standard of Dolan v. City of Tigard, 512 U.S. 374 (1994), applied to this case. We granted certiorari, 523 U.S. 1045 (1998), and now address these questions in reverse order.
II
In the course of holding a reasonable jury could have found the city's denial of the final proposal not substantially related to legitimate public interests, the Court of Appeals stated: "Even if the City had a legitimate interest in denying Del Monte's development application, its action must be `roughly proportional' to furthering that interest. . . . That is, the City's denial must be related `both in nature and extent to the impact of the proposed development.' " 95 F. 3d, at 1430, quoting Dolan, supra, at 391.
Although in a general sense concerns for proportionality animate the Takings Clause, see Armstrong v. United States, 364 U.S. 40, 49 (1960) ("The Fifth Amendment's guarantee. . . was designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole"), we have not extended the rough-proportionality test of Dolan beyond the special context of exactions—land-use decisions conditioning approval of development on the dedication of property to public use. See Dolan, supra, at 385; Nollan v. California
The instructions given to the jury, however, did not mention proportionality, let alone require it to find for Del Monte Dunes unless the city's actions were roughly proportional to its asserted interests. The Court of Appeals' discussion of rough proportionality, we conclude, was unnecessary to its decision to sustain the jury's verdict. Although the court stated that "[s]ignificant evidence supports Del Monte's claim that the City's actions were disproportional to both the nature and extent of the impact of the proposed development," 95 F. 3d, at 1432, it did so only after holding that
Given this holding, it was unnecessary for the Court of Appeals to discuss rough proportionality. That it did so is irrelevant to our disposition of the case.
III
The city challenges the Court of Appeals' holding that the jury could have found the city's denial of the final development
As the city itself proposed the essence of the instructions given to the jury, it cannot now contend that the instructions did not provide an accurate statement of the law. In any event, although this Court has provided neither a definitive statement of the elements of a claim for a temporary regulatory taking nor a thorough explanation of the nature or applicability of the requirement that a regulation substantially advance legitimate public interests outside the context of required dedications or exactions, cf., e. g., Nollan, supra, at 834-835, n. 3, we note that the trial court's instructions are consistent with our previous general discussions of regulatory takings liability. See Dolan, supra, at 385; Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1016 (1992); Yee v. Escondido, 503 U.S. 519, 534 (1992); Nollan, supra, at 834; Keystone Bituminous Coal Assn. v. DeBenedictis, 480 U.S. 470, 485 (1987); United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 126 (1985); Agins v. City of Tiburon, 447 U.S. 255, 260 (1980). The city did not challenge below the applicability or continued viability of the general test for regulatory takings liability recited by these authorities and upon which the jury instructions appear to have been modeled. Given the posture of the case before us, we decline the suggestions of amici to revisit these precedents.
To the extent the city contends the judgment sustained by the Court of Appeals was based upon a jury determination of the reasonableness of its general zoning laws or land-use policies, its argument can be squared with neither the instructions given to the jury nor the theory on which the case was tried. The instructions did not ask the jury whether the city's zoning ordinances or policies were unreasonable
The instructions regarding the city's decision also did not allow the jury to consider the reasonableness, per se, of the customized, ad hoc conditions imposed on the property's development, and Del Monte Dunes did not suggest otherwise. On the contrary, Del Monte Dunes disclaimed this theory of the case in express terms: "Del Monte Dunes partnership did not file this lawsuit because they were complaining about giving the public the beach, keeping it [the development] out of the view shed, devoting and [giving] to the State all this habitat area. One-third [of the] property is going to be given away for the public use forever. That's not what we filed the lawsuit about." Id., at 1288; see also id., at 1288-1289
Rather, the jury was instructed to consider whether the city's denial of the final proposal was reasonably related to a legitimate public purpose. Even with regard to this issue, however, the jury was not given free rein to second-guess the city's land-use policies. Rather, the jury was instructed, in unmistakable terms, that the various purposes asserted by the city were legitimate public interests. See App. 304.
The jury, furthermore, was not asked to evaluate the city's decision in isolation but rather in context, and, in particular, in light of the tortuous and protracted history of attempts to develop the property. See, e. g., 10 Tr. 1294-1295 (Feb. 9, 1994). Although Del Monte Dunes was allowed to introduce evidence challenging the asserted factual bases for the city's decision, it also highlighted the shifting nature of the city's demands and the inconsistency of its decision with the recommendation of its professional staff, as well as with its previous decisions. See, e. g., id., at 1300. Del Monte Dunes also introduced evidence of the city's longstanding interest in acquiring the property for public use. See, e. g., id., at 1303-1306.
In short, the question submitted to the jury on this issue was confined to whether, in light of all the history and the context of the case, the city's particular decision to deny Del Monte Dunes' final development proposal was reasonably related to the city's proffered justifications. This question was couched, moreover, in an instruction that had been proposed in essence by the city, and as to which the city made no objection.
Thus, despite the protests of the city and its amici, it is clear that the Court of Appeals did not adopt a rule of takings law allowing wholesale interference by judge or jury with municipal land-use policies, laws, or routine regulatory
IV
We next address whether it was proper for the District Court to submit the question of liability on Del Monte Dunes' regulatory takings claim to the jury. (Before the District Court, the city agreed it was proper for the jury to assess damages. See Supplemental Memorandum of Petitioner Re: Court/Jury Trial Issues in No. C86-5042 (ND Cal.), p. 2, Record, Doc. No. 111.) As the Court of Appeals recognized, the answer depends on whether Del Monte Dunes had a statutory or constitutional right to a jury trial, and, if it did, the nature and extent of the right. Del Monte Dunes asserts the right to a jury trial is conferred by § 1983 and by the Seventh Amendment.
Under our precedents, "[b]efore inquiring into the applicability of the Seventh Amendment, we must `first ascertain whether a construction of the statute is fairly possible by which the [constitutional] question may be avoided.' " Feltner v. Columbia Pictures Television, Inc., 523 U.S. 340, 345 (1998) (quoting Tull v. United States, 481 U.S. 412, 417, n. 3 (1987)); accord, Curtis v. Loether, 415 U.S. 189, 192, n. 6 (1974).
The character of § 1983 is vital to our Seventh Amendment analysis, but the statute does not itself confer the jury right. See Feltner, supra, at 345 ("[W]e cannot discern `any congressional intent to grant . . . the right to a jury trial'" (quoting Tull, supra, at 417, n. 3)). Section 1983 authorizes a party who has been deprived of a federal right under the color of state law to seek relief through "an action at law, suit in equity, or other proper proceeding for redress." Del Monte Dunes contends that the phrase "action at law" is a
In Lorillard v. Pons, 434 U.S. 575, 583 (1978), we found a statutory right to a jury trial in part because the statute authorized "legal . . . relief." Our decision, however, did not rest solely on the statute's use of the phrase but relied as well on the statute's explicit incorporation of the procedures of the Fair Labor Standards Act, which had been interpreted to guarantee trial by jury in private actions. Id., at 580. We decline, accordingly, to find a statutory jury right under § 1983 based solely on the authorization of "an action at law."
As a consequence, we must reach the constitutional question. The Seventh Amendment provides that "[i]n Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved . . . ." Consistent with the textual mandate that the jury right be preserved, our interpretation of the Amendment has been guided by historical analysis comprising two principal inquiries. "[W]e ask, first, whether we are dealing with a cause of action that either was tried at law at the time of the founding or is at least analogous to one that was." Markman v. Westview Instruments, Inc., 517 U.S. 370, 376 (1996). "If the action in question belongs in the law category, we then ask whether the particular trial decision must fall to the jury in order to preserve the substance of the common-law right as it existed in 1791." Ibid.
A
With respect to the first inquiry, we have recognized that "suits at common law" include "not merely suits, which the common law recognized among its old and settled proceedings, but [also] suits in which legal rights were to be ascertained and determined, in contradistinction to those where equitable rights alone were recognized, and equitable remedies were administered." Parsons v. Bedford, 3 Pet. 433, 447 (1830). The Seventh Amendment thus applies not only
1
Del Monte Dunes brought this suit pursuant to § 1983 to vindicate its constitutional rights. We hold that a § 1983 suit seeking legal relief is an action at law within the meaning of the Seventh Amendment. Justice Scalia 2122s opinion concurring in part and concurring in the judgment presents a comprehensive and convincing analysis of the historical and constitutional reasons for this conclusion. We agree with his analysis and conclusion.
It is undisputed that when the Seventh Amendment was adopted there was no action equivalent to § 1983, framed in specific terms for vindicating constitutional rights. It is settled law, however, that the Seventh Amendment jury guarantee extends to statutory claims unknown to the common law, so long as the claims can be said to "soun[d] basically in tort," and seek legal relief. Curtis, supra, at 195-196.
As Justice Scalia explains, see post, at 727-731, there can be no doubt that claims brought pursuant to § 1983 sound in tort. Just as common-law tort actions provide redress for interference with protected personal or property interests, § 1983 provides relief for invasions of rights protected under federal law. Recognizing the essential character of the statute, "`[w]e have repeatedly noted that 42 U. S. C. § 1983 creates a species of tort liability,' " Heck v. Humphrey, 512 U.S. 477, 483 (1994) (quoting Memphis Community School Dist. v. Stachura, 477 U.S. 299, 305 (1986)), and have interpreted the statute in light of the "background of tort liability," Monroe v. Pape, 365 U.S. 167, 187 (1961) (overruled on other grounds, Monell v. New York City Dept. of Social Servs., 436 U.S. 658
Here Del Monte Dunes sought legal relief. It was entitled to proceed in federal court under § 1983 because, at the time of the city's actions, the State of California did not provide a compensatory remedy for temporary regulatory takings. See First English, 482 U. S., at 308-311. The constitutional injury alleged, therefore, is not that property was taken but that it was taken without just compensation. Had the city paid for the property or had an adequate postdeprivation remedy been available, Del Monte Dunes would have suffered no constitutional injury from the taking alone. See Williamson, 473 U. S., at 194-195. Because its statutory action did not accrue until it was denied just compensation, in a strict sense Del Monte Dunes sought not just compensation per se but rather damages for the unconstitutional denial of such compensation. Damages for a constitutional violation are a legal remedy. See, e. g., Teamsters v. Terry, 494 U.S. 558, 570 (1990) ("Generally, an action for money damages was `the traditional form of relief offered in the courts of law' ") (quoting Curtis, 415 U. S., at 196).
Even when viewed as a simple suit for just compensation, we believe Del Monte Dunes' action sought essentially legal relief. "We have recognized the `general rule' that monetary relief is legal." Feltner, 523 U. S., at 352 (quoting Teamsters v. Terry, supra, at 570). Just compensation, moreover, differs from equitable restitution and other monetary remedies available in equity, for in determining just compensation, "the question is what has the owner lost, not what has the taker gained." Boston Chamber of Commerce v. Boston, 217 U.S. 189, 195 (1910). As its name suggests, then, just compensation is, like ordinary money damages, a compensatory remedy. The Court has recognized that compensation is a purpose "traditionally associated with legal
2
In an attempt to avoid the force of this conclusion, the city urges us to look not to the statutory basis of Del Monte Dunes' claim but rather to the underlying constitutional right asserted. At the very least, the city asks us to create an exception to the general Seventh Amendment rule governing § 1983 actions for claims alleging violations of the Takings Clause of the Fifth Amendment. See New Port Largo, Inc. v. Monroe County, 95 F.3d 1084 (CA11 1996) (finding, in tension with the Ninth Circuit's decision in this case, that there is no right to a jury trial on a takings claim brought under § 1983). Because the jury's role in estimating just compensation in condemnation proceedings was inconsistent and unclear at the time the Seventh Amendment was adopted, this Court has said "that there is no constitutional right to a jury in eminent domain proceedings." United States v. Reynolds, 397 U.S. 14, 18 (1970); accord, Bauman v. Ross, 167 U.S. 548, 593 (1897). The city submits that the analogy to formal condemnation proceedings is controlling, so that there is no jury right here.
As Justice Scalia notes, see post, at 724-726, we have declined in other contexts to classify § 1983 actions based on the nature of the underlying right asserted, and the city provides no persuasive justification for adopting a different rule for Seventh Amendment purposes. Even when analyzed not as a § 1983 action simpliciter, however, but as a § 1983 action seeking redress for an uncompensated taking, Del Monte Dunes' suit remains an action at law.
Although condemnation proceedings spring from the same Fifth Amendment right to compensation which, as incorporated by the Fourteenth Amendment, is applicable here, see First English, supra, at 315 (citing Jacobs v. United States, 290 U.S. 13, 16 (1933)), a condemnation action differs in important
This difference renders the analogy to condemnation proceedings not only unhelpful but also in apposite. When the government takes property without initiating condemnation proceedings, it "shifts to the landowner the burden to discover the encroachment and to take affirmative action to recover just compensation." United States v. Clarke, 445 U.S. 253, 257 (1980). Even when the government does not dispute its seizure of the property or its obligation to pay for it, the mere "shifting of the initiative from the condemning authority to the condemnee" can place the landowner "at a significant disadvantage." Id., at 258; cf. id., at 255 ("There are important legal and practical differences between an inverse condemnation suit and a condemnation proceeding"); 84 Stat. 1906, § 304, 42 U. S. C. § 4654 (recognizing, at least implicitly, the added burden by providing for recovery of attorney's fees in cases where the government seizes property without initiating condemnation proceedings but not in ordinary condemnation cases). Where, as here, the government not only denies liability but fails to provide an adequate postdeprivation remedy (thus refusing to submit the question of liability to an impartial arbiter), the disadvantage to the owner becomes all the greater. At least in these circumstances, the analogy to ordinary condemnation procedures is simply untenable.
Our conclusion is confirmed by precedent. Early authority finding no jury right in a condemnation proceeding did so
(Although Justice Souter's opinion concurring in part and dissenting in part takes issue with this distinction, its arguments are unpersuasive. First, it correctly notes that when the government initiates formal condemnation procedures, a landowner may question whether the proposed taking is for public use. The landowner who raises this issue, however, seeks not to establish the government's liability for damages, but to prevent the government from taking his property at all. As the dissent recognizes, the relief desired by a landowner making this contention is analogous not to damages but to an injunction; it should be no surprise, then, that the landowner is not entitled to a jury trial on his entitlement to a remedy that sounds not in law but in equity. Second, the dissent refers to "the diversity of rationales underlying early state cases in which the right of a direct condemnee to a jury trial was considered and denied." Post, at 742. The dissent mentions only the rationale that because the government is immune from suit for damages, it can qualify any remedy it provides by dispensing with the right to a jury trial. The cases cited for this proposition—two state-court cases antedating the adoption of the Fourteenth Amendment and an off-point federal case—do not implicate
Condemnation proceedings differ from the instant cause of action in another fundamental respect as well. When the government condemns property for public use, it provides the landowner a forum for seeking just compensation, as is required by the Constitution. See First English, supra, at 316. If the condemnation proceedings do not, in fact, deny the landowner just compensation, the government's actions are neither unconstitutional nor unlawful. See Williamson, 473 U. S., at 194 ("The Fifth Amendment does not proscribe the taking of property; it proscribes taking without just compensation"). Even when the government takes property without initiating condemnation proceedings, there is no constitutional violation "`unless or until the state fails to provide
In these circumstances, we conclude the cause of action sounds in tort and is most analogous to the various actions that lay at common law to recover damages for interference with property interests. Our conclusion is consistent with the original understanding of the Takings Clause and with historical practice.
Early opinions, nearly contemporaneous with the adoption of the Bill of Rights, suggested that when the government took property but failed to provide a means for obtaining just compensation, an action to recover damages for the government's actions would sound in tort. See, e. g., Lindsay v. Commissioners, 2 Bay 38, 61 (S. C. 1796) (opinion of Waties, J.) ("But suppose they could sue, what would be the nature of the action? It could not be founded on contract, for there was none. It must then be on a tort; it must be an action of trespass, in which the jury would give a reparation in damages. Is not this acknowledging that the act of the legislature [in authorizing uncompensated takings] is a tortious act?" (emphases in original)); Gardner v. Village of Newburgh, 2 Johns. Ch. 162, 164, 166 (N. Y. 1816) (Kent, Ch.) (uncompensated governmental interference with property right would support a tort action at law for nuisance).
Consistent with this understanding, and as a matter of historical practice, when the government has taken property without providing an adequate means for obtaining redress, suits to recover just compensation have been framed as common-law tort actions. See, e. g., Richards v. Washington Terminal Co., 233 U.S. 546 (1914) (nuisance); Pumpelly v. Green Bay Co., 13 Wall. 166 (1872) (trespass on the case); Barron ex rel. Tiernan v. Mayor of Baltimore, 7 Pet. 243
(Justice Souter 2122s criticism of our reliance on these early authorities misses the point of our analysis. We do not contend that the landowners were always successful. As the dissent makes clear, prior to the adoption of the Fourteenth Amendment and the concomitant incorporation of the Takings Clause against the States, a variety of obstacles—including various traditional immunities, the lack of a constitutional right, and the resulting possibility of legislative justification—stood in the way of the landowner who sought redress for an uncompensated taking. Rather, our point is that the suits were attempted and were understood to sound in tort. It is therefore ironic that the dissent invokes a law review article discussing such suits entitled "The First Constitutional Tort: The Remedial Revolution in NineteenthCentury State Just Compensation Law." Post, at 746-747 (citing Brauneis, 52 Vand. L. Rev. 57 (1999)). It is true, as the dissenting opinion observes, that claims for just compensation were sometimes brought in quasi contract rather than tort. See, e. g., United States v. Lynah, 188 U.S. 445, 458-465 (1903) (overruled on other grounds, United States v. Chicago, M., St. P. & P. R. Co., 312 U.S. 592 (1941)) (comparing claims for just compensation brought in quasi contract with just-compensation claims brought in tort). The historical existence of quasi-contract suits for just compensation does nothing to undermine our Seventh Amendment analysis, however, since quasi contract was frequently available to the victim of a tort who elected to waive the tort and proceed
The city argues that because the Constitution allows the government to take property for public use, a taking for that purpose cannot be tortious or unlawful. We reject this conclusion. Although the government acts lawfully when, pursuant to proper authorization, it takes property and provides just compensation, the government's action is lawful solely because it assumes a duty, imposed by the Constitution, to provide just compensation. See First English, 482 U. S., at 315 (citing Jacobs, 290 U. S., at 16). When the government repudiates this duty, either by denying just compensation in fact or by refusing to provide procedures through which compensation may be sought, it violates the Constitution. In those circumstances the government's actions are not only unconstitutional but unlawful and tortious as well. See Gardner v. Village of Newburgh, supra, at 166, 168 ("[T]o render the exercise of the [eminent domain] power valid," the government must provide landowner "fair compensation"; "[u]ntil, then, some provision be made for affording him compensation, it would be unjust, and contrary to the first principles of government," to deprive plaintiff of his property rights; absent such a provision, the plaintiff "would be entitled to his action at law for the interruption of his right"); Beatty v. United States, 203 F. 620, 626 (CA4 1913) ("The taking of property by condemnation under the power of eminent domain is compulsory. The party is deprived of his property against his will. It is in effect a lawful trespass committed by the sovereign, and lawful only on the condition that the damages inflicted by the trespass are paid to the injured party. The analogy to a suit at common law for trespass is close and complete").
B
Having decided Del Monte Dunes' § 1983 suit was an action at law, we must determine whether the particular issues of liability were proper for determination by the jury. See Markman v. Westview Instruments, Inc., 517 U.S. 370 (1996). In actions at law, issues that are proper for the jury must be submitted to it "to preserve the right to a jury's resolution of the ultimate dispute," as guaranteed by the Seventh Amendment. Id., at 377. We determine whether issues are proper for the jury, when possible, "by using the historical method, much as we do in characterizing the suits and actions within which [the issues] arise." Id., at 378. We look to history to determine whether the particular issues, or analogous ones, were decided by judge or by jury in suits at common law at the time the Seventh Amendment was adopted. Where history does not provide a clear answer, we look to precedent and functional considerations. Id., at 384.
1
Just as no exact analogue of Del Monte Dunes' § 1983 suit can be identified at common law, so also can we find no precise analogue for the specific test of liability submitted to the jury in this case. We do know that in suits sounding in tort for money damages, questions of liability were decided by the jury, rather than the judge, in most cases. This allocation preserved the jury's role in resolving what was often
2
We look next to our existing precedents. Although this Court has decided many regulatory takings cases, none of our decisions has addressed the proper allocation of liability determinations between judge and jury in explicit terms. This is not surprising. Most of our regulatory takings decisions have reviewed suits against the United States, see, e. g., United States v. Riverside Bayview Homes, Inc., 474 U.S. 121 (1985); Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., 452 U.S. 264 (1981), suits decided by state courts, see, e. g., Dolan v. City of Tigard, 512 U.S. 374 (1994); Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992); Nollan v. California Coastal Comm'n, 483 U.S. 825 (1987); First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U.S. 304 (1987), or suits seeking only injunctive relief, see, e. g., Keystone Bituminous Coal Assn. v. DeBenedictis, 480 U.S. 470 (1987). It is settled law that the Seventh Amendment does not apply in these contexts. Lehman v. Nakshian, 453 U.S. 156, 160 (1981) (suits against the United States); Curtis, 415 U. S., at 192, n. 6 (suits brought in state court); Parsons, 3 Pet., at 447 (suits seeking only equitable relief).
In Williamson, we did review a regulatory takings case in which the plaintiff landowner sued a county planning commission in federal court for money damages under § 1983. 473 U. S., at 182. Whether the commission had denied the plaintiff all economically viable use of the property had been submitted to the jury. Id., at 191-192, and n. 12. Although the Court did not consider the point, it assumed the propriety of this procedure. E. g., id., at 191 ("It is not clear whether the jury would have found that the respondent had
Williamson is not a direct holding, however, and we must look for further guidance. We turn next to considerations of process and function.
3
In actions at law predominantly factual issues are in most cases allocated to the jury. See Baltimore & Carolina Line, Inc. v. Redman, 295 U.S. 654, 657 (1935). The allocation rests on a firm historical foundation, see, e. g., 1 E. Coke, Institutes 155b (1628) ("ad quaestionem facti non respondent judices; ad quaestionem juris non respondent juratores"), and serves "to preserve the right to a jury's resolution of the ultimate dispute," Markman, supra, at 377.
Almost from the inception of our regulatory takings doctrine, we have held that whether a regulation of property goes so far that "there must be an exercise of eminent domain and compensation to sustain the act . . . depends upon the particular facts." Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 413 (1922); accord, Keystone Bituminous Coal, supra, at 473-474. Consistent with this understanding, we have described determinations of liability in regulatory takings cases as "`essentially ad hoc, factual inquiries,' " Lucas, supra, at 1015 (quoting Penn Central Transp. Co. v. New York City, 438 U.S. 104, 124 (1978)), requiring "complex factual assessments of the purposes and economic effects of government actions," Yee, 503 U. S., at 523.
In accordance with these pronouncements, we hold that the issue whether a landowner has been deprived of all economically viable use of his property is a predominantly factual question. As our implied acknowledgment of the procedure in Williamson, supra, suggests, in actions at law
The jury's role in determining whether a land-use decision substantially advances legitimate public interests within the meaning of our regulatory takings doctrine presents a more difficult question. Although our cases make clear that this inquiry involves an essential factual component, see Yee, supra, at 523, it no doubt has a legal aspect as well, and is probably best understood as a mixed question of fact and law.
In this case, the narrow question submitted to the jury was whether, when viewed in light of the context and protracted history of the development application process, the city's decision to reject a particular development plan bore a reasonable relationship to its proffered justifications. See Part III, supra. As the Court of Appeals recognized, this question was "essentially fact-bound [in] nature." 95 F. 3d, at 1430 (internal quotation marks omitted) (alteration by Court of Appeals). Under these circumstances, we hold that it was proper to submit this narrow, fact-bound question to the jury.
C
We note the limitations of our Seventh Amendment holding. We do not address the jury's role in an ordinary inverse condemnation suit. The action here was brought under § 1983, a context in which the jury's role in vindicating constitutional rights has long been recognized by the federal courts. A federal court, moreover, cannot entertain a takings claim under § 1983 unless or until the complaining landowner has been denied an adequate postdeprivation remedy. Even the State of California, where this suit arose, now provides a facially adequate procedure for obtaining just compensation for temporary takings such as this one. Our decision is also circumscribed in its conceptual reach. The posture of the case does not present an appropriate occasion to define with precision the elements of a temporary regulatory takings claim; although the city objected to submitting
For these reasons, we do not attempt a precise demarcation of the respective provinces of judge and jury in determining whether a zoning decision substantially advances legitimate governmental interests. The city and its amici suggest that sustaining the judgment here will undermine the uniformity of the law and eviscerate state and local zoning authority by subjecting all land-use decisions to plenary, and potentially inconsistent, jury review. Our decision raises no such specter. Del Monte Dunes did not bring a broad challenge to the constitutionality of the city's general land-use ordinances or policies, and our holding does not extend to a challenge of that sort. In such a context, the determination whether the statutory purposes were legitimate, or whether the purposes, though legitimate, were furthered by the law or general policy, might well fall within the province of the judge. Nor was the gravamen of Del Monte Dunes' complaint even that the city's general regulations were unreasonable as applied to Del Monte Dunes' property; we do not address the proper trial allocation of the various questions that might arise in that context. Rather, to the extent Del Monte Dunes' challenge was premised on unreasonable governmental action, the theory argued and tried to the jury was that the city's denial of the final development permit was inconsistent not only with the city's general ordinances and policies but even with the shifting ad hoc restrictions previously imposed by the city. Del Monte Dunes' argument, in short, was not that the city had followed its zoning ordinances and policies but rather that it had not done so. As is often true in § 1983 actions, the disputed questions were whether the government had denied a constitutional right in acting outside the bounds of its authority, and, if so, the extent of any resulting damages. These were questions for the jury.
For the reasons stated, the judgment of the Court of Appeals is affirmed.
It is so ordered.
Justice Scalia, concurring in part and concurring in the judgment.
I join all except Part IV-A-2 of Justice Kennedy's opinion. In my view, all § 1983 actions must be treated alike insofar as the Seventh Amendment right to jury trial is concerned; that right exists when monetary damages are sought; and the issues submitted to the jury in the present case were properly sent there.
I
Revised Stat. § 1979, 42 U. S. C. § 1983, creates a duty to refrain from interference with the federal rights of others, and provides money damages and injunctive relief for violation of that duty. Since the statute itself confers no right to jury trial, such a right is to be found, if at all, in the application to § 1983 of the Seventh Amendment, which guarantees a jury "[i]n Suits at common law, where the value in controversy shall exceed twenty dollars." In determining whether a particular cause of action is a "[s]ui[t] at common law" within the meaning of this provision, we must examine whether it was tried at law in 1791 or is analogous to such a cause, see, e. g., Granfinanciera, S. A. v. Nordberg, 492 U.S. 33, 42 (1989), and whether it seeks relief that is legal or equitable in nature, see, e. g., Tull v. United States, 481 U.S. 412, 421 (1987).
The fundamental difference between my view of this case and Justice Souter's is that I believe § 1983 establishes a unique, or at least distinctive, cause of action, in that the legal duty which is the basis for relief is ultimately defined not by the claim-creating statute itself, but by an extrinsic body of law to which the statute refers, namely, "federal
The Seventh Amendment inquiry looks first to the "nature of the statutory action." Feltner v. Columbia Pictures Television, Inc., 523 U.S. 340, 348 (1998). The only "statutory action" here is a § 1983 suit. The question before us, therefore, is not what common-law action is most analogous to some generic suit seeking compensation for a Fifth Amendment taking, but what common-law action is most analogous to a § 1983 claim. The fact that the breach of duty which underlies the particular § 1983 claim at issue here—a Fifth Amendment takings violation—may give rise to another cause of action besides a § 1983 claim, namely, a so-called inverse condemnation suit, which is (according to Part IV-A-2 of Justice Kennedy's opinion) or is not (according to Justice Souter 2122s opinion) entitled to be tried before a jury, seems to me irrelevant. The central question remains whether a § 1983 suit is entitled to a jury. The fortuitous existence of an inverse-condemnation cause of action is surely not essential to the existence of the § 1983 claim. Indeed, for almost all § 1983 claims arising out of constitutional violations, no alternative private cause of action does exist— which makes it practically useful, in addition to being theoretically sound, to focus on the prism instead of the refracted light.
This is exactly the approach we took in Wilson v. Garcia, 471 U.S. 261 (1985)—an opinion whose analysis is so precisely in point that it gives this case a distinct quality of déjà vu. Wilson required us to analogize § 1983 actions to common-law suits for a different purpose: not to determine applicability of the jury-trial right, but to identify the relevant
For these reasons the Court concluded that all § 1983 actions should be characterized as "tort action[s] for the recovery of damages for personal injuries." Id., at 276.
To be sure, § 1988 is not the Seventh Amendment. It is entirely possible to analogize § 1983 to the "common law" in one fashion for purposes of that statute, and in another fashion for purposes of the constitutional guarantee. But I cannot imagine why one would want to do that. For both purposes it is a "unique federal remedy" whose character is determined by the federal cause of action, and not by the innumerable constitutional and statutory violations upon which that cause of action is dependent. And for both purposes the search for (often nonexistent) common-law analogues to remedies for those particular violations is a major headache. Surely, the burden should be upon Justice Souter to explain why a different approach is appropriate in the present context. I adhere to the approach of Wilson, reaffirmed and refined in Owens v. Okure, 488 U.S. 235 (1989), that a § 1983 action is a § 1983 action.
To apply this methodology to the present case: There is no doubt that the cause of action created by § 1983 is, and was always regarded as, a tort claim. Thomas Cooley's treatise on tort law, which was published roughly contemporaneously with the enactment of § 1983, tracked Blackstone's view, see 3 W. Blackstone, Commentaries on the Laws of England 115-119 (1768), that torts are remedies for invasions of certain rights, such as the rights to personal security, personal liberty, and property. T. Cooley, Law of Torts 2-3 (1880). Section 1983 assuredly fits that description. Like other tort causes of action, it is designed to provide compensation for injuries arising from the violation of legal duties, see Carey v. Piphus, 435 U.S. 247, 254 (1978), and thereby, of course, to deter future violations.
This Court has confirmed in countless cases that a § 1983 cause of action sounds in tort. We have stated repeatedly that § 1983 "creates a species of tort liability," Imbler v. Pachtman, 424 U.S. 409, 417 (1976); see also Heck v. Humphrey, 512 U.S. 477, 483 (1994); Memphis Community School Dist. v. Stachura, 477 U.S. 299, 305 (1986); Smith v. Wade, 461 U.S. 30, 34 (1983); Carey, supra, at 253; Hague v. Committee for Industrial Organization, 307 U.S. 496, 507 (1939) (opinion of Roberts, J.) (describing a claim brought under a predecessor of § 1983 as seeking relief for "tortious invasions of alleged civil rights by persons acting under color
As described earlier, in Wilson, supra, and Okure, supra, we used § 1983's identity as a personal-injury tort to determine the relevant statute of limitations under 42 U. S. C. § 1988(a). We have also used § 1983's character as a tort cause of action to determine the scope of immunity, Kalina v. Fletcher, 522 U.S. 118, 124-125 (1997), the recoverable damages, Heck, supra, at 483; Memphis Community School Dist., supra, at 305-306, and the scope of liability, Monroe v. Pape, 365 U.S. 167, 187 (1961). In Owen v. Independence, 445 U.S. 622, 657 (1980), we even asserted that the attributes of § 1983 could change to keep up with modern developments in the law of torts: "Doctrines of tort law have changed significantly over the past century, and our notions of governmental responsibility should properly reflect that evolution.
The Seventh Amendment's right to jury trial attaches to a statutory cause of action that, although unknown at common law, is analogous to common-law causes that were tried before juries. See, e. g., Feltner v. Columbia Pictures Television, Inc., 523 U. S., at 347-348. The initial Seventh Amendment question before us, therefore, is whether a tort action seeking money damages was a "suit at common law" for which a jury trial was provided. The answer is obviously yes. Common-law tort actions were brought under the writs of trespass and trespass on the case. See generally S. Milsom, Historical Foundations of the Common Law 283-313 (2d ed. 1981). Trespass remedied direct, forcible tortious injuries, while the later developed trespass on the case remedied indirect or consequential harms. See, e. g., Dix, Origins of the Action of Trespass on the Case, 46 Yale L. J. 1142, 1163 (1937); Krauss, Tort Law and Private Ordering, 35 St. Louis U. L. J. 623, 637, and n. 66 (1991). Claims brought pursuant to these writs and seeking money damages were triable to juries at common law. See, e. g., T. Plucknett, A Concise History of the Common Law 125, 348 (4th ed. 1948); J. Baker, An Introduction to English Legal History 59 (2d ed. 1979). It is clear from our cases that a tort action for money damages is entitled to jury trial under the Seventh Amendment. See Curtis v. Loether, 415 U.S. 189, 195 (1974) (according jury trial because "[a] damages action under [Title VIII of the Civil Rights Act of 1968] sounds basically in tort—the statute merely defines a new legal duty, and authorizes the courts to compensate a plaintiff for the injury caused by the defendant's wrongful breach"); Pernell v. Southall Realty, 416 U.S. 363, 370 (1974) ("This Court has long assumed that . . . actions for damages to a person or property . . . are actions at law triable to a jury"); Ross v.
A number of lower courts have held that a § 1983 damages action—without reference to what might have been the most analogous common-law remedy for violation of the particular federal right at issue—must be tried to a jury. See, e. g., Caban-Wheeler v. Elsea, 71 F.3d 837, 844 (CA11 1996); Perez-Serrano v. DeLeon-Velez, 868 F.2d 30, 32-33 (CA1 1989); Laskaris v. Thornburgh, 733 F.2d 260, 264 (CA3 1984); Segarra v. McDade, 706 F.2d 1301, 1304 (CA4 1983); Dolence v. Flynn, 628 F.2d 1280, 1282 (CA10 1980); Amburgey v. Cassady, 507 F.2d 728, 730 (CA6 1974); Brisk v. Miami Beach, 726 F.Supp. 1305, 1311-1312 (SD Fla. 1989); Ruth Anne M. v. Alvin Independent School Dist., 532 F.Supp. 460, 475 (SD Tex. 1982); Mason v. Melendez, 525 F.Supp. 270, 282 (WD Wis. 1981); Cook v. Cox, 357 F.Supp. 120, 124-125, and n. 4 (ED Va. 1973).
In sum, it seems to me entirely clear that a § 1983 cause of action for damages is a tort action for which jury trial would have been provided at common law. The right of jury trial is not eliminated, of course, by virtue of the fact that, under our modern unified system, the equitable relief of an injunction is also sought. See, e. g., Dairy Queen, Inc. v. Wood, 369 U.S. 469, 479 (1962); Scott v. Neely, 140 U.S. 106, 109-110 (1891). Nor—to revert to the point made in Part I of this discussion—is the tort nature of the cause of action, and its entitlement to jury trial, altered by the fact that another cause of action was available (an inverse-condemnation suit) to obtain the same relief. Even if that were an equitable cause of action—or, as Justice Souter asserts, a peculiar legal cause of action to which the right to jury trial did not attach—the nature of the § 1983 suit would no more be transformed by it than, for example, a common-law fraud action would be deprived of the right to jury trial by the fact that
III
To say that respondents had the right to a jury trial on their § 1983 claim is not to say that they were entitled to have the jury decide every issue. The precise scope of the jury's function is the second Seventh Amendment issue before us here—and there again, as we stated in Markman v. Westview Instruments, Inc., 517 U.S. 370, 377 (1996), history is our guide. I agree with the Court's methodology, see ante, at 718-719, 720, which, in the absence of a precise historical analogue, recognizes the historical preference for juries to make primarily factual determinations and for judges to resolve legal questions. See Baltimore & Carolina Line, Inc. v. Redman, 295 U.S. 654, 657 (1935). That fact-law dichotomy is routinely applied by the lower courts in deciding § 1983 cases. For instance, in cases alleging retaliatory discharge of a public employee in violation of the First Amendment, judges determine whether the speech that motivated the termination was constitutionally protected speech, while juries find whether the discharge was caused by that speech. See, e. g., Horstkoetter v. Department of Public Safety, 159 F.3d 1265, 1271 (CA10 1998). And in cases asserting municipal liability for harm caused by unconstitutional policies, judges determine whether the alleged policies were unconstitutional, while juries find whether the policies in fact existed and whether they harmed the plaintiff. See, e. g., Myers v. County of Orange, 157 F.3d 66, 74-76 (CA2 1998), cert. denied, 525 U.S. 1146 (1999).
In the present case, the question of liability for a Takings Clause violation was given to the jury to determine by answering two questions: (1) whether respondents were deprived of "all economically viable use" of their property, and (2) whether petitioner's 1986 rejection of respondents' building plans "substantially advance[d] [a] legitimate public interes[t]."
* * *
I conclude that the Seventh Amendment provides respondents with a right to a jury trial on their § 1983 claim, and that the trial court properly submitted the particular issues raised by that § 1983 claim to the jury. For these reasons, I concur in the judgment and join all but Part IV-A-2 of Justice Kennedy's opinion.
A federal court commits error by submitting an issue to a jury over objection, unless the party seeking the jury determination has a right to a jury trial on the issue. Fed. Rule Civ. Proc. 39(a)(2). In this action under Rev. Stat. § 1979, 42 U. S. C. § 1983, the city unsuccessfully objected to submitting respondents' regulatory takings (or inverse condemnation) claim to a jury. Respondents had no right to a jury trial either by statute or under the Constitution; the District Court thus erred in submitting their claim to a jury. In holding to the contrary, that such a right does exist under the Seventh Amendment, the Court misconceives a takings claim under § 1983 and draws a false analogy between such a claim and a tort action. I respectfully dissent from this error.
I
I see eye to eye with the Court on some of the preliminary issues. I agree in rejecting extension of "rough proportionality" as a standard for reviewing land-use regulations generally and so join Parts I and II of the majority opinion. I also join the Court in thinking the statutory language "an action at law" insufficient to provide a jury right under 42 U. S. C. § 1983, ante, at 707-708, with the consequence that Markman v. Westview Instruments, Inc., 517 U.S. 370 (1996), must provide the appropriate questions in passing on the issue of a constitutional guarantee of jury trial: "`whether we are dealing with a cause of action that either was tried at law at the time of the founding or is at least analogous to one that was' "; and, if so, "`whether the particular trial decision must fall to the jury in order to preserve the substance of the common-law right as it existed in 1791.' " Ante, at 708 (quoting Markman, supra, at 376). The Court soundly concedes that at the adoption of the Seventh Amendment there was no action like the modern inverse
II
The city's proposed analogy of inverse condemnation proceedings to direct ones is intuitively sensible, given their common Fifth Amendment constitutional source and link to the sovereign's power of eminent domain. Accord, e. g., New Port Largo, Inc. v. Monroe County, 95 F.3d 1084, 1092 (CA11 1996) ("We have discovered no indication that the rule in regulatory takings cases differs from the general eminent domain framework"); Northglenn v. Grynberg, 846 P.2d 175, 178 (Colo. 1993) ("Because an inverse condemnation action is based on the `takings' clause of our constitution, it is to be tried as if it were an eminent domain proceeding"). See Grant, A Revolutionary View of the Seventh Amendment and the Just Compensation Clause, 91 Nw. U. L. Rev. 144, 191-205 (1996).
The intuition is borne out by closer analysis of the respective proceedings. The ultimate issue is identical in both direct and inverse condemnation actions: a determination of "the fair market value of the property [taken] on the date it is appropriated," as the measure of compensation required by the Fifth Amendment. Kirby Forest Industries, Inc. v. United States, 467 U.S. 1, 10 (1984). It follows, as Justice Brandeis said in Hurley v. Kincaid, 285 U.S. 95 (1932), that "[t]he compensation which [a property owner] may obtain in [an inverse condemnation] proceeding will be the same as that which he might have been awarded had the [government] instituted . . . condemnation proceedings," id., at 104. This, indeed, has been our settled understanding, in cases
Accord, Boom Co. v. Patterson, 98 U.S. 403, 407 (1879) ("The point in issue [in the inverse condemnation proceeding] was the compensation to be made to the owner of the land; in other words, the value of the property taken. . . . The case would have been in no essential particular different had the State authorized the company by statute to appropriate the particular property in question, and the owners to bring suit against the company in the courts of law for its value"). It is presumably for this reason that this Court has described inverse condemnation actions as it might speak of eminent domain proceedings brought by property owners instead of the government. See Agins v. City of Tiburon, 447 U.S. 255, 258, n. 2 (1980) ("Inverse condemnation is `a shorthand description of the manner in which a landowner recovers just compensation for a taking of his property when condemnation proceedings have not been instituted'") (quoting United States v. Clarke, 445 U.S. 253, 257 (1980)). See also Armstrong v. United States, 364 U.S. 40, 49 (1960); Grant, supra, at 192-193 ("The difference between condemnation and inverse condemnation inheres precisely in the `character' of
The strength of the analogy is fatal to respondents' claim to a jury trial as a matter of right. Reaffirming what was already a well-established principle, the Court explained over a century ago that "the estimate of the just compensation for property taken for the public use, under the right of eminent domain, is not required to be made by a jury," Bauman v. Ross, 167 U.S. 548, 593 (1897) (citing, inter alia, Custiss v. Georgetown & Alexandria Turnpike Co., 6 Cranch 233 (1810); United States v. Jones, 109 U.S. 513, 519 (1883); and Shoemaker v. United States, 147 U.S. 282, 300, 301 (1893)),
The reason that direct condemnation proceedings carry no jury right is not that they fail to qualify as "Suits at common law" within the meaning of the Seventh Amendment's guarantee, for we may assume that they are indeed common law proceedings,
The Court in Reynolds was on solid footing. In England, while the general practice of Parliament was to provide for the payment of compensation, parliamentary supremacy enabled it to take private property for public use without compensation. See, e. g., Randolph, The Eminent Domain, 3 L. Q. Rev. 314, 323 (1887) ("That there is no eminent domain
In sum, at the time of the framing the notion of regulatory taking or inverse condemnation was yet to be derived, the closest analogue to the then-unborn claim was that of direct condemnation, and the right to compensation for such direct takings carried with it no right to a jury trial, just as the jury right is foreign to it in the modern era. On accepted Seventh Amendment analysis, then, there is no reason to find a jury right either by direct analogy or for the sake of preserving the substance of any jury practice known to the law
III
The plurality avoids this obvious conclusion in two alternative ways. One way is to disparage the comparison of inverse to direct taking, on the grounds that litigation of the former involves proof of liability that the latter does not and is generally more onerous to the landowner. The disparagement is joined with adoption of a different analogy, between inverse condemnation proceedings and actions for tortious interference with property interests, the latter of which do implicate a right to jury trial. The plurality's stated grounds for avoiding the direct condemnation analogy, however, simply break down, and so does the purported comparison to the tort actions. The other way the plurality avoids my conclusion is by endorsing the course followed by Justice Scalia in his separate opinion, by selecting an analogy not to tort actions as such, but to tort-like § 1983 actions. This alternative, however, is ultimately found wanting, for it prefers a statutory analogy to a constitutional one.
A
1
The plurality's argument that no jury is required in a direct condemnation proceeding because the government's liability is conceded, leaving only the issue of damages to be assessed, rests on a premise that is only partially true. The part that is true, of course, is that the overwhelming number of direct condemnation cases join issue solely on the amount of damages, that is, on the just compensation due the landowner. But that is not true always. Now and then a landowner will fight back by denying the government's right to condemn, claiming that the object of the taking was not a public purpose or was otherwise unauthorized by statute.
The plurality's second reason for doubting the comparability of direct and inverse condemnation is that the landowner has a heavier burden to shoulder in the latter case, beginning with a need to initiate legal action, see United States v. Clarke, 445 U. S., at 257. Once again, however, it is apparent that the two varieties of condemnation are not always so distinguishable. The landowner who defends in a direct condemnation action by denying the government's right to take is in no significantly different position from the inverse condemnee who claims the government must pay or be enjoined because its regulation fails to contribute substantially to its allegedly public object. See, e. g., 2A Sackman, supra, § 7.03[12], at 7-105 to 7-106 (citing cases where "the challenger has the burden of proof to show that the taking is not for a public purpose"). And once again one may ask why, even if the inverse condemnee's burden always were the heavier, that should make any difference. Some plaintiffs' cases are easy and some are difficult, but the difficult ones
2
Just as the plurality's efforts to separate direct from inverse condemnation actions thus break down, so does its proposal to analogize inverse condemnation to property damage torts. Whereas the plurality posits an early practice of litigating inverse condemnation as a common law tort, there was in fact a variety of treatments, some of them consistent with the plurality's argument, some of them not. None of those treatments turned on the plurality's analysis that a State's withholding of some recovery process is essential to the cause of action. In the end, the plurality's citations simply do not point to any early practice both consistently followed and consistent with the concepts underlying today's inverse condemnation law. a
The plurality introduces its claimed analogue of tort actions for property damage by emphasizing what it sees as a real difference between the action of the government in direct condemnations, and those inverse condemnations, at least, that qualify for litigation under § 1983. Whereas in eminent domain proceedings the government admits its liability for the value of the taking, in the inverse condemnation cases litigated under § 1983, it refuses to do so inasmuch as it denies the landowner any state process (or effective process) for litigating his claim. See Williamson County Re-
According to the plurality, it is the taking of property without providing compensation or a mechanism to obtain it that is tortious and subject to litigation under § 1983. See ante, at 714-715, 717. By this reasoning, the plurality seeks to distinguish such a § 1983 action from a direct condemnation action and possibly from "an ordinary inverse condemnation suit," as well, ante, at 721, by which the plurality presumably means a suit under a state law providing a mechanism for redress of regulatory takings claims.
The plurality claims to have authority for this view in some early state and federal cases seeing regulatory interference with land use as akin to nuisance, trespass, or trespass on the case, ante, at 715-716, and I agree that two of the plurality's cited cases,
Beyond these cases, however, any prospect of a uniform tort treatment disappears. One of the plurality's cited cases, Bradshaw v. Rodgers, 20 Johns. 103 (N. Y. 1822), was reversed by Rogers v. Bradshaw, 20 Johns. 735 (N. Y. 1823). As the concept of public liability was explained in the latter opinion, it turned not on an issue of garden variety tort law, but on whether there was a total absence or not of legal authority for a defending public officer's action with respect to the land. See id., at 743 ("I should doubt exceedingly, whether the general principle, that private property is not to be taken for public uses without just compensation, is to be carried so far as to make a public officer, who enters upon private property by virtue of legislative authority, specially given for a public purpose, a trespasser, if he enters before the property has been paid for. I do not know, nor do I find, that the precedents will justify any court of justice in carrying the general principle to such an extent"). See also Brauneis, The First Constitutional Tort: The Remedial Revolution in Nineteenth-Century State Just Compensation Law, 52 Vand. L. Rev. 57, 64-65 (1999) (demonstrating that pre-Civil War owner-initiated just compensation plaintiffs
To the plurality's collection of tort and authorization cases, one must add those that are so far from reflecting any early understanding of inverse condemnation as conventionally
After a canvass of these materials, the only conclusion that seems reasonable to me is that prior to the emergence of the modern inverse condemnation action a spectrum of legal theories was employed to respond to the problem of inverse taking. No one of these experiments can be accepted as a definitive analogue of the contemporary action, and each of them is inconsistent in some way with the contemporary view that inverse condemnation enforces payment for the owner's value in property lawfully taken.
b
If the chosen tort analogy were not already too weak to sustain the plurality's position, it would be rendered so by the plurality's inability to identify any tort recovery under the old cases for the government's sin of omission in failing to provide a process of compensation (which the plurality finds at the heart of the § 1983 claim), as distinct from the acts of interfering with use or enjoyment of land. The plurality simply fails to find any analogue on this element, and its failure is in fact matched by the failure of its § 1983 theory to fit the reality of § 1983 litigation for inverse takings. When an inverse condemnation claim is brought under § 1983, the "provision" of law that is thereby enforced,
c
Finally, it must be said that even if the tort analogue were not a failure, it would prove too much. For if the comparison to inverse condemnation were sound, it would be equally
The plurality's analogy, if accepted, simply cannot be confined to inverse condemnation actions alone, and if it is not so confined it runs squarely against the settled law in the field of direct condemnation.
B
In addition to the plurality's direct tort analogy, the Court pursues a different analytical approach in adopting Justice Scalia's analogy to § 1983 actions seeking legal relief, see ante, at 709. Justice Scalia begins with a more sweeping
1
First, the analogy to all § 1983 actions does not serve any unified field theory of jury rights under § 1983. While the statute is indeed a prism through which rights originating elsewhere may pass on their way to a federal jury trial, trial by jury is not a uniform feature of § 1983 actions. The statute provides not only for actions at law with damages remedies where appropriate, but for "suit[s] in equity, or other proper proceeding[s] for redress." 42 U. S. C. § 1983. Accordingly, rights passing through the § 1983 prism may in proper cases be vindicated by injunction, see, e. g., Mitchum v. Foster, 407 U.S. 225, 242-243 (1972) (§ 1983 falls within "expressly authorized" exception of Anti-Injunction Act and thus authorizes injunctions staying state-court proceedings), by orders of restitution, see, e. g., Samuel v. University of Pittsburgh, 538 F.2d 991, 994-995 (CA3 1976) (restitution of university fees collected pursuant to rule held to violate Equal Protection Clause), and by declaratory judgments, see,
Nor, as I have already mentioned, see supra, at 748-750, is there a sound basis for treating inverse condemnation as providing damages for a tort. A State's untoward refusal to provide an adequate remedy to obtain compensation, the sine qua non of an inverse condemnation remedy under § 1983, is not itself the independent subject of an award of damages (and respondents do not claim otherwise); the remedy is not damages for tortious behavior, but just compensation for the value of the property taken.
2
Even if an argument for § 1983 simplicity and uniformity were sustainable, however, it would necessarily be weaker than the analogy with direct condemnation actions. That analogy rests on two elements that are present in each of the two varieties of condemnation actions: a Fifth Amendment constitutional right and a remedy specifically mandated by that same amendment. Because constitutional values are superior to statutory values, uniformity as between different applications of a given constitutional guarantee is more important than uniformity as between different applications of a given statute. If one accepts that proposition as I do, a close analogy between direct and inverse condemnation proceedings is necessarily stronger than even a comparably close resemblance between two statutory actions.
Were the results of the analysis to this point uncertain, one final anomaly of the Court's position would point up its error. The inconsistency of recognizing a jury trial right in inverse condemnation, notwithstanding its absence in condemnation actions, appears the more pronounced on recalling that under Agins one theory of recovery in inverse condemnation cases is that the taking makes no substantial contribution to a legitimate governmental purpose.
The usual practice makes perfect sense. While juries are not customarily called upon to assume the subtleties of deferential review, courts apply this sort of limited scrutiny in all sorts of contexts and are routinely accorded institutional competence to do it. See, e. g., Pearson v. Grand Blanc, 961 F.2d 1211, 1222 (CA6 1992) (deferential substantive due process review a matter of law for the court). Scrutinizing the legal basis for governmental action is "one of those things that judges often do and are likely to do better than jurors unburdened by training in exegesis." Markman, 517 U. S., at 388. It therefore should bring no surprise to find that in the takings cases a question whether regulatory action substantially advances a legitimate public aim has more often than not been treated by the federal courts as a legal issue. See, e. g., New Port Largo, Inc. v. Monroe County, 95 F.3d 1084, 1092 (CA11 1996) (whether regulatory taking occurred is an issue for the court); Mid Gulf, Inc. v. Bishop, 792 F.Supp. 1205, 1213-1214, 1215 (Kan. 1992) (whether city's regulations unreasonable and a taking a question of law for the court); Gissel v. Kenmare Township, 512 N.W.2d 470, 474 (N. D. 1994) (necessity for proposed taking a question for the court); Yegen v. Bismarck, 291 N.W.2d 422, 424 (N. D. 1980) (taking vel non of private property for public use a question of law). But see Gray v. South Carolina Dept. of Highways, 427 S.E.2d 899 (S. C. App. 1992) (whether no taking because closing of intersection was needed to prevent serious public harm is jury issue). These practices point up
Perhaps this is the reason that the Court apparently seeks to distance itself from the ramifications of today's determination. The Court disclaims any attempt to set a "precise demarcation of the respective provinces of judge and jury in determining whether a zoning decision substantially advances legitimate governmental interests." Ante, at 722. It denies that today's holding would extend to "a broad challenge to the constitutionality of the city's general landuse ordinances or policies," in which case, "the determination whether the statutory purposes were legitimate, or whether the purposes, though legitimate, were furthered by the law or general policy, might well fall within the province of the judge." Ibid. (And the plurality presumably does not mean to address any Seventh Amendment issue that someone might raise when the government has provided an adequate remedy, for example, by recognizing a compensatory action for inverse condemnation, see ante, at 714-715, 717.) But the Court's reticence is cold comfort simply because it rests upon distinctions that withstand analysis no better than the tort-law analogies on which the Court's conclusion purports to rest. The narrowness of the Court's intentions cannot, therefore, be accepted as an effective limit on the consequences on its reasoning, from which I respectfully dissent.
FootNotes
Briefs of amici curiae urging affirmance were filed for the American Farm Bureau Federation et al. by Timothy S. Bishop, Jeffrey W. Sarles, John J. Rademacher, Nancy N. McDonough, and Carolyn S. Richardson; for the California Association of Realtors et al. by Roger J. Marzulla; for Defenders of Property Rights et al. by Nancie G. Marzulla; for the Institute for Justice by William H. Mellor, Clint Bolick, Scott G. Bullock, and Richard A. Epstein; for the National Association of Home Builders et al. by Gus Bauman, Mary V. DiCrescenzo, and Nick Cammarota; for the Pacific Legal Foundation et al. by James S. Burling; and for the Washington Legal Foundation et al. by Daniel J. Popeo and Paul D. Kamenar.
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