Bench Memos

Law & the Courts

This Day in Liberal Judicial Activism—October 13

U.S. Court of Appeals for the Ninth Circuit (

2020—The Ninth Circuit denies en banc review of a divided panel ruling (in Pakdel v. City of San Francisco) that held that a takings challenge was “unripe” because plaintiffs failed to avail themselves of a previously existing opportunity to apply for an exemption. But as Judge Daniel P. Collins (joined by eight other judges) explains in his dissent from the denial of rehearing—and as Judge Carlos Bea explained in his dissent from the panel ruling—the panel majority, under the confused rubric of lack of finality, instead imposed a requirement that takings plaintiffs exhaust state remedies.

In June 2021, the Supreme Court, without any registered dissent, will summarily reverse the Ninth Circuit panel ruling and embrace the position taken by Collins and Bea.


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