176
Souter, J., dissenting
That is not to say, of course, that we should resolve either the taking or compensation issues here, for the Fifth Circuit did not address them. Rather, we should determine here whether either of the remaining issues might reasonably be resolved against respondents; if so, we should not abstract the property issue for resolution in their favor now, but should return the case to the Court of Appeals to consider all three issues before resolving the first. Suffice it to say that both the taking and compensation questions are serious ones for respondents.
First, as to a taking, we start with Penn Central Transp. Co. v. New York City, 438 U. S. 104 (1978), and its guidance about certain sorts of facts that are of particular importance in what is supposed to be an "ad hoc, factual" enquiry, id., at 124, into whether the government has "go[ne] too far." Pennsylvania Coal Co. v. Mahon, 260 U. S. 393, 415 (1922). Attention should be paid to the nature of the government's action, its economic impact, and the degree of any interference with reasonable, investment-backed expectations. Penn Central, supra, at 124. Here it is enough to note the possible significance of the facts that there is no physical occupation or seizure of tangible property, cf. Loretto v. Tele-prompter Manhattan CATV Corp., 458 U. S. 419, 426 (1982) (noting that physical intrusion is "unusually serious" in the takings context); that there is no apparent economic impact (since the client would have no net interest to go in his pocket, IOLTA or no IOLTA); and that the facts present neither anything resembling an investment nor (for the reason just given) any apparent basis for reasonably expecting to obtain net interest. While a court would certainly consider any proposal that respondents might make for a departure from the Penn Central approach to vindicating the Fifth Amendment in these circumstances, application of Penn Central would not bode well for claimants like respondents.
Second, as to the just compensation requirement, the client's inability to earn net interest outside IOLTA, due to
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