244
Scalia, J., dissenting
but a so-called 'market value.' " Our cases have recognized only two situations in which this standard is not to be used: when market value is too difficult to ascertain, and when payment of market value would result in " 'manifest injustice' " to the owner or the public. See Kirby Forest Industries, Inc., supra, at 10, n. 14.
In holding that any just compensation that might be owed is zero, the Court neither pretends to ascertain the market value of the confiscated property nor asserts that the case falls within one of the two exceptions where market value need not be determined. Instead, the Court proclaims that just compensation is to be determined by the former property owner's "net loss," and endorses simultaneously two competing and irreconcilable theories of how that loss should be measured. The Court proclaims its agreement with the Ninth Circuit majority that just compensation is the interest petitioners would have earned had their funds been deposited in non-IOLTA accounts. Ante, at 239-240. See also 271 F. 3d 835, 862 (CA9 2001) ("[W]ithout IOLTA, neither Brown nor Hayes would have earned interest on his principal because by regulatory definition, their funds would have not otherwise been placed in an IOLTA account"). At the same time, the Court approves the view of the Ninth Circuit dissenters that just compensation is the amount of interest actually earned in petitioners' IOLTA accounts, minus the amount that would have been lost in transaction costs had petitioners sought to keep the money for themselves. Ante, at 238-239, n. 10. The Court cannot have it both ways—as the Ninth Circuit itself realized—but even if it could, neither of the two options from which lower courts may now choose is consistent with Phillips or our precedents that equate just compensation with the fair market value of the property taken.
A
Under the Court's first theory, just compensation is zero because, under the State Supreme Court's Rules, the only
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