Cite as: 538 U. S. 216 (2003)
Scalia, J., dissenting
recovering the "net interest" to which (even under the Court's definition of just compensation) they are entitled. What is more, there is no reason to believe that petitioners themselves do not fall within the class of clients whose funds, though unable to earn interest in non-IOLTA accounts, nevertheless generate "net interest" in IOLTA accounts. That is why the Ninth Circuit dissenters (who shared the Court's second theory of just compensation but not the first) voted to remand to the District Court for a factual determination of what the "net value" of petitioners' interest actually is.
To confuse confusion yet again, the Court justifies its decision not to remand by simply falling back upon the different theory of just compensation espoused by the Ninth Circuit majority—namely, that just compensation will always be zero because the funds would not have earned interest for the clients in a non-IOLTA savings account. Ante, at 239- 240. See also 271 F. 3d, at 862 ("Brown and Hayes are in actuality seeking compensation for the value added to their property by Washington's IOLTA program"). That does not conform, of course, with the Court's previously announced standard for just compensation: "the net value of the interest that was actually earned by petitioners." Ante, at 239, n. 10 (emphasis added).7 Assessing the "net value" of inter-7 In this reprise of its first theory, designed to cover the embarrassing fact that its second theory does not support its disposition, the Court makes the assertion that, even if some lawyer mistakenly placed into the IOLTA account client funds that could have generated net earnings independently (thus rendering even the Court's first theory factually inapplicable), compensation would still not be required, because "[a]ny conceivable net loss [would be] the consequence of the [lawyer's] incorrect private decisio[n] rather than any state action." Ante, at 239. That is surely not correct. Even on the Court's own misbegotten theory, the taking occurs when the IOLTA interest is transferred to LFW, and compensation is not payable only if the principal generating that interest could not have earned interest otherwise. How the principal got into the IOLTA account—mistakenly or otherwise—has nothing to do with whether there has been a "taking" of "value." The government would owe just compensation for a taking of real property even if the action of some third party
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