180
Breyer, J., dissenting
is distributed to groups that represent low-income individuals rather than to the lawyers or their clients who own the funds.
Insofar as factual circumstances such as these raise a Fifth Amendment question, I agree with Justice Souter that the question is whether Texas, by requiring the placing of the funds in special IOLTA accounts and depriving the funds' owners of the subsequently earned interest has temporarily "taken" what is undoubtedly "private property," namely, the client's funds, i. e., the principal, without "just compensation." To answer this (appropriately framed) question, the parties and the lower courts would have to consider whether the use of the principal in the fashion dictated by the IOLTA rules amounts to a deprivation of a property right, and, if so, whether the government's "taking" required compensating the owner of the funds, where it did not deprive the funds' owners of interest they might have otherwise received. But the Court of Appeals did not address this latter question. See ante, at 179 (Souter, J., dissenting).
Although I believe it wrong to separate Takings Clause analysis of the property rights at stake from analysis of the alleged deprivation, I have considered the question presented on its own terms. And, on the majority's assumptions, I believe that its answer is not the right one. The majority's answer rests upon the use of a legal truism, namely, "interest follows principal," and its application of a particular case, namely, Webb's Fabulous Pharmacies, Inc. v. Beckwith, 449 U. S. 155 (1980). See ante, at 166, 171. In my view, neither truism nor case can answer the hypothetical question the Court addresses.
The truism does not help because the question presented assumes circumstances that differ dramatically from those in which interest is ordinarily at issue. Ordinarily, principal is capable of generating interest for whoever holds it. Here, by the very terms of the question, we must assume
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