The Georgetown Law Journal Online

This case comment will examine the recent Supreme Court decision Arkansas Game & Fish Commission v. United States, delivered by Justice Ginsberg in the first opinion of the October 2012 term. The decision reversed the judgment of the Federal Circuit and held that flooding caused by the government need not be permanent to be a taking of property that requires just compensation under the Takings Clause of the Fifth Amendment to the U.S. Constitution. Ultimately, the Court did not determine whether a taking had occurred, instructing the lower court on remand to apply the “situation-specific factual inquir[y]” under Penn Central, which is followed to decide many takings cases outside the floodwater context. The Court used its Arkansas opinion primarily for doctrinal maintenance, bringing floodwater takings jurisprudence back into the fold of ordinary takings analysis and rejecting any new per se rules for takings like the bright lines drawn in Loretto and Lucas. By merely rejecting the recognition of a new bright-line rule and avoiding more controversial questions, the Court was able to craft a unanimous ruling with a relatively quick turnaround.

This comment will first review the factual background of Arkansas, its narrow question presented as compared to the question actually addressed by the Court, and the precedent relied on by the lower courts. The comment will then describe the decision’s analysis and holding and evaluate how the Court could have achieved a similar result by using a narrower reading of the question presented. Other arguments rejected or not adopted by the Court, including two competing per se takings theories, will also be examined, in addition to two other arguments the Court explicitly declined to discuss. Notable among these arguments is the proposition that the claim should be blocked by Arkansas state reasonable-use water-rights law. Last, the comment will review the factors to be relied upon on remand and how the Court of Federal Claims has applied the Arkansas decision in a recent high-profile case.

This paper argues that the Court’s current approach to equal protection, which treats the tiered framework as a rigid taxonomy rather than a set of guiding principles, is untenable. As this paper seeks to illustrate, the Court’s current approach has skewed the Court’s analysis, rendering the substantive nature of the equal protection guarantee unclear, and it has failed in its goal of ensuring a proper role for the Court in a democratic system of government.

Instead, the Court should embrace a unitary standard of equal protection review, as has been long-advocated by Justices Marshall and Stevens, as well as by numerous scholarly commentators. Under this standard, the Court would apply the same analysis it has already applied under the various tiers of review, but it would do so in a transparent manner. This unitary standard looks to the claimed injury, the government’s claimed interest, and the fit between the government’s interest and the classification at issue. Under this approach, the Court can give coherent guidance to lower courts that are tasked with reviewing the vast majority of equal protection challenges, as well as to legislatures and public institutions tasked with formulating government policies.

This approach requires rejection of the colorblind theory. Because it views purpose as irrelevant and applies the means necessary to preserve the status quo, the colorblind approach is devoid of substance and inconsistent with the original intent behind the Equal Protection Clause. It leaves the government free to insulate its laws from judicial review simply by omitting reference to a suspect classification, while precluding the government from adopting measures to remedy bias against groups who have undisputedly suffered a long history of state-sanctioned discrimination.


The last time I spoke at Georgetown University Law Center was on the occasion of the eightieth anniversary of the Legal Adviser’s Office, known affectionately at the State Department as “L.” I have now been the Legal Adviser at the State Department for more than three and a half years. During that time, at nearly every public event I attend, I find myself being asked questions about one issue: armed conflict. Nearly every question I am asked involves Guantanamo, Afghanistan, cyber war, detention, and targeting practices. While these key areas raise tremendously important legal questions, in fact, they do not occupy even half of my time. More than half of my time is spent on a completely different set of issues, which I almost never get a chance to talk about publicly.

So today, let me talk not about international conflict, but about the other side of what I do: the legal aspects of international cooperation and engagement. Specifically, let me address how we in the Obama Administration have handled a broad set of activities that can be grouped loosely under the rubric of “twenty-first-century international lawmaking.”
Now I would expect that many, if not most, of you have already studied, or even taught, this topic, whether in a constitutional law, international law, national security law, or foreign relations law class. You all know the hornbook law on this subject: the United States can make law through international cooperation via one of three domestic law devices: (1) an Article II treaty, advised and consented to by two-thirds of the Senate; (2) a congressional–executive agreement, which involves passage of a statute by a majority of both houses and signature by the President; and (3) under certain circumstances, by sole executive agreement, concluded within the scope of the President’s independent constitutional authority. Indeed, sketching this tripartite framework of Article II treaty, congressional–executive agreement, and sole executive agreement is Lesson I of Foreign Relations Law 101. Over my academic career, those core lessons constitute a law school course that I have often taught and law review articles that I have published.

But it turns out that in the real world—I have found during my time at L—it is just not that simple. In this lecture, I hope to challenge your preconceived notions of how today’s practice of international legal engagement really works. In the twenty-first century, I would argue, we are now moving to a whole host of less crystalline, more nuanced forms of international legal engagement and cooperation that do not fall neatly within any of these three pigeonholes. My message is that in the twenty-first century, our international legal engagement has become about far more than just treaties and executive agreements. We need a better way to describe the texture of the tapestry of modern international lawmaking and related activities that stays truer to reality than this procrustean construct that academics try to impose on a messy reality. To give you a fuller sense of that texture, let me describe our current international lawmaking practice with regard to entering and complying with treaties; executive agreements and customary international law; and emerging modes of international legal engagement, such as what I will call “diplomatic law-talk,” layered cooperation, and hybrid public–private arrangements.