Brewer v. Department of Fish & Wildlife

I join in the majority’s analysis and disposition of this case. It has struggled thoughtfully and candidly with the existing case law concerning the scope and effect of the so-called “remedies clause” of Article I, section 10, and has developed a test that is consistent with at least most of the more recent cases construing the clause. To be sure, the majority’s resolution cannot be reconciled with all of the applicable precedents. That is because the applicable precedents themselves cannot be reconciled. It is to explore that point that I write separately, in the hope that it may prompt some…