Volume 71, Number 5

November 1996

Taking Sides: The Burden of Proof Switch in Dolan v. City of Tigard

Marshall S. Sprung

In June 1994, the United States Supreme Court handed down a decision which, for all its real or imagined inventiveness, followed tradition in at least one important respect. Dolan v. City of Tigard, the eagerly awaited addition to the Rehnquist Court’s already controversial takings jurisprudence, said a mouthful about the constitutional status of the Takings Clause and the shape of the regulatory takings doctrine. Along the way, and almost matter-of-factly, the Court announced a shift in the burden of proof to the government. However, while it devoted a great deal of effort to its discussion of constitutional issues and state takings cases, the Dolan Court chose to make this burden shift without extended comment and confined its remarks to the space of a short footnote and a few lines of text. That a burden of proof shift occurred so quietly, yet coincided with considerable advancement in the substantive law, represents a familiar judicial tactic.