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Justice Clarence Thomas is well known for writing separate opinions highlighting the gap between the Supreme Courts contemporary jurisprudence in a given area and the original constitutional understanding or original public meaning of the relevant constitutional provisions. Earlier this week, for example, Thomas suggested that the court should reconsider its qualified immunity jurisprudence.

Friday, inMurr v. Wisconsin, Thomas suggested that the court shouldreconsider the constitutional foundation of regulatory takings doctrine. Although he joined the dissent authored by Chief Justice John G. Roberts Jr., Thomas also wrote separately to highlight the tension between the courts doctrine and the original meaning of the Fifth Amendments takings clause. He wrote:

I join THE CHIEF JUSTICEs dissent because it correctly applies this Courts regulatory takings precedents, which no party has asked us to reconsider. The Court, however, has never purported to ground those precedents in the Constitution as it was originally understood. In Pennsylvania Coal Co. v. Mahon, 260 U. S. 393, 415 (1922), the Court announced a general rule that if regulation goes too far it will be recognized as a taking. But we have since observed that, prior to Mahon, it was generally thought that the Takings Clause reached only a direct appropriation of property, Legal Tender Cases, 12 Wall. 457, 551 (1871), or the functional equivalent of a practical ouster of [the owners] possession, Transportation Co. v. Chicago, 99 U. S. 635, 642 (1879). Lucas v. South Carolina Coastal Council, 505 U. S. 1003, 1014 (1992). In my view, it would be desirable for us to take a fresh look at our regulatory takings jurisprudence, to see whether it can be grounded in the original public meaning of the Takings Clause of the Fifth Amendment or the Privileges or Immunities Clause of the Fourteenth Amendment. See generally Rappaport, Originalism and Regulatory Takings: Why the Fifth Amendment May Not Protect Against Regulatory Takings, but the Fourteenth Amendment May, 45 San Diego L. Rev. 729 (2008) (describing the debate among scholars over those questions).

The paper Thomas cites at the end of his opinion is by University of San Diego law professor Michael Rappaport, a prominent originalist scholar (and contributor to the Originalism Blog). Here is the abstract to Rappaports paper:

This article explores the widely disputed issue of whether Takings Clause protects against regulatory takings, offering a novel and intermediate solution. Critics of the regulatory takings doctrine have argued that the original meaning of the Fifth Amendment Takings Clause does not cover regulatory takings. They have quickly moved from this claim to the conclusion that the incorporated Takings Clause under the Fourteenth Amendment also does not cover regulatory takings.

In this article, I accept the claim that the Fifth Amendment Takings Clause does not cover regulatory takings, but then explore the possibility that the incorporated Takings Clause does cover such takings. Applying Akhil Amars theory of incorporation, I argue that there are strong reasons, based on history, structure, and purpose, to conclude that the Takings Clause had a different meaning under the Fourteenth Amendment. Amar argues that the Bill of Rights was dominated by republican ideas, but that the Fourteenth Amendment was founded on more liberal notions intended to protect individual rights. This would suggest that a broad reading of the Takings Clause would further the principles underlying the Fourteenth Amendment.

Moreover, that some state courts had come to apply takings principles to regulatory and other nonphysical takings in the period between the enactment of the Bill of Rights and the Fourteenth Amendment provides additional support for the possibility that the Fourteenth Amendment enactors would have understood it to apply to regulatory takings. While the paper does not attempt to prove that the Fourteenth Amendment Takings Clause applies to regulatory takings, leaving that task to others, it argues that critics of regulatory takings doctrine should no longer simply assume that the Constitutions original meaning does not apply to state regulatory takings.

Regulatory takings is not the only context in which property rights activists may be asking the Fifth Amendment to do the constitutional work better done by the 14th Amendment (if it is to be done at all). Eminent domain may be another (for reasons I briefly sketch in this exchange).

If there is to be greater clarity about regulatory takings, it might help if the entire doctrine rested on a more secure and constitutionally sound foundation.

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Should regulatory takings doctrine be reconsidered from the ground up? - Washington Post

SAN FRANCISCO (CN) Despite multiple orders directing Uber to hand over evidence in a trade secrets brawl with Google spinoff Waymo involving driverless car technology, attorneys for both companies were back in court Friday debating which documents Uber must share.

U.S. Magistrate Judge Jacqueline Scott Corley handed Uber its first discovery victory Friday, ruling that the ride-hailing giant does not have to produce communications with its attorneys at Morrison and Foerster, which are listed on a privilege log it gave Waymo in March.

Corley didnt buy Waymos argument that even if the communications are privileged, they must be produced under the crime-fraud exception.

I do not find that the crime-fraud exception applies, so Im not going to order those documents which are just between Uber and MoFo [Morrison & Foerster] be produced, Corley said.

The crime-fraud exception states that communications are not privileged when a client consults an attorney for advice on furthering a crime.

Waymo sued Uber and its driverless car company, Otto, in February, claiming its former engineer, Anthony Levandowski, stole 14,000 confidential files from Waymo related to its self-driving car technology. Waymo accused Uber of using those files to set up Otto, which Uber quickly acquired. Waymo did not name Levandowski as a defendant.

The following month, Uber gave Waymo a privilege log that contained a due-diligence report, which it had commissioned to evaluate the Otto acquisition. Stroz Friedberg, the investigation firm that prepared the report, purportedly saw the stolen files during its review. Fearing criminal prosecution, Levandowski invoked his Fifth Amendment rights. This allowed him to avoid testifying at his deposition about the report and also prohibited Uber from giving Waymo a revised privilege log with more information about it, including whether Levandowski had any of the documents Stroz Friedberg reviewed.

U.S. District Judge William Alsup, who is overseeing the case, denied Levandowskis Fifth Amendment motion, writing in a May 15 order that Levandowki had likely concealed troves of self-incriminating evidence by trying to invoke the Fifth Amendment.

Waymo still wants the due-diligence report, but Uber insisted that it was protected by work-product and attorney-client privilege. Corley, however, ruledearlier this month that Uber must produce it, and Alsup affirmed the decision this week.

Fighting now for the communications on Ubers privilege log between Uber and its lawyers, which may relate to the due-diligence report, Waymo attorney Charles Verhoeven made his case Friday about the crime-fraud exception.

If you are aware that someone has stolen files and you come into possession of these stolen files, it is a crime to continue to conceal that from the competitor and work with the person, in this case Mr. Levandowski, who has taken the Fifth, to continue to destroy that evidence or maintain it in some confidential way, he said.

Bolstering that argument is a Wednesday filing by Waymo telling the court that Uber admitted that Levandowski told Uber CEO Travis Kalanick more than a year ago that he had five discs containing information from Google, and that Kalanick told him not to bring the information to Uber. Shortly after, Levandowski told Uber that he had destroyed the discs.

Ive reviewed in-camera the due-diligence report, and I dont find that, Corley replied. What the due-diligence report is about, I found, in order to evaluate acquiring Otto, they were doing an investigation into Mr. Levandowski, including whether they had taken any documents and to create a record should any indemnification obligation arise. Thats not crime-fraud. There is no evidence they consulted MoFo [Morrison & Foerster] in order to receive stolen property. The communications have to be in furtherance of that scheme.

Uber attorney Martha Goodman told Corley that an exhaustive search of Ubers servers for the files hasnt turned them up.

All of the evidence [shows] that Uber does not possess these files, she said. In fact, all of the evidence shows that Uber is doing all it can to make Levandowski return anything that belongs to Google.

Uber fired Levandowski last month for refusing to cooperate with its internal investigation into the files.

Verhoeven countered that Morrison & Foerster has admitted that it has the files. And in a brief, Waymo contends that the firm has been sitting on some of the stolen files for over a year.

Corley remained unconvinced, telling Verhoeven that there is an inference to be drawn that Morrison & Foerster received the files along with the due-diligence report while reviewing the Otto acquisition.

You cant prove by the preponderance of the evidence that that is receipt of stolen property, she said, before reminding Verhoeven that Waymo will still get the due-diligence report.

Although Alsup has ordered Uber to turn over the report, he stayed his ruling until June 30 so Uber and Levandowski can appeal his decision.

Uber still faces an uphill battle over producing evidence. The company failed to meet a May 31 deadline to make Levandowski return the files, prompting Waymo to move earlier this week for an order to show cause why Uber should not be held in contempt for missing the deadline.

A hearing on that motion is set for July 27.

Verhoeven is with Quinn Emanuel Urquhart & Sullivan in San Francisco, and Goodman is with Boies Schiller Flexner in Washington.

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Uber Can Witthold Attorney Files in Driverless Car Discovery - Courthouse News Service

Uber admitted that it hired a former Google employee despite being warned that he possessed sensitive documents from the Silicon Valley giant, adding a new twist to a court battle over trade secrets.

Waymo, the self-driving car developer created by Alphabets (GOOGL) Google, has accused Uber of using stolen trade secrets in its own software that would serve as the backbone of autonomous vehicles. Uber has denied the charges. However, the ride-sharing company fired Anthony Levandowski, the ex-Google engineer and Uber executive, for failing to cooperate with an internal investigation.

Waymos lawsuit maintains that Uber then transplanted the intellectual property allegedly stolen by Levandowski into its own fleet of self-driving vehicles a charge that Uber has adamantly denied since Waymo filed its complaint in federal court four months ago.

In May, U.S. District Judge William Alsup ordered Uber to return the stolen files, writing that evidence indicated the company "knew or should have known that he possessed over 14,000 confidential Waymo files."

Now, Uber has for the first time has acknowledged that Levandowski informed its now-departed CEO, Travis Kalanick, that he had five disks filled with Google's information five months before joining Uber. The disclosure, made in March 2016, lends credence to Waymo's allegation that Levandowski downloaded 14,000 documents on to a computer before leaving Google.

The admission was contained in a Thursday court filing.

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Uber, though, says Kalanick told Levandowski not to bring any of the Google information with him to Uber. At that time, a deal had been reached for Uber to buy Levandowski's startup, Otto, for $680 million, though the acquisition wasn't completed until August 2016.

The filing asserts that Levandowski destroyed the disks containing Google's material not long after Kalanick told him that Uber didn't want the information on them.

Levandowski's lawyers didn't immediately respond to requests for comment. They have been advising Levandowski to assert his Fifth Amendment right against self-incrimination since Waymo filed its lawsuit.

Based on the evidence he has seen so far, Alsup has already referred the case to the Justice Department for a potential criminal investigation.

The scenario sketched by Uber comes a few weeks after the company fired Levandowski for refusing to relinquish his Fifth Amendment rights and cooperate with its efforts to defend itself against Waymo's suit.

Kalanick resigned as Uber's CEO Tuesday week after investors demanded he step down. The investors who have financed Uber's growth had concluded Kalanick had to go following revelations of sexual harassment in the company's office, a federal investigation into company tactics used to thwart regulators, and the threat of even more trouble posed by the Waymo lawsuit.

The Associated Press contributed to this report.

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Uber admits it knew ex-Google engineer kept trade secrets - Fox Business

Alphabet is asking a judge to find Uber in contempt for failing to notify the court that former CEO Travis Kalanick was aware one of his top executives had proprietary Alphabet information in his possession and that he ordered its destruction.

The executive, Anthony Levandowski, allegedly told Kalanick and two other employees in March 2016 that he had five discs containing Alphabet documents, several months before the ride-hail company acquired his startup, Otto.

Levandowski, who had previously led Alphabets self-driving car project, has been accused of stealing technology and taking it to Uber.

Judge William Alsup recently ordered Uber to produce documents and correspondence related to the case, including information showing whether any evidence had been destroyed. On Wednesday, Alphabet cited a June 5 Uber court filing that shows Kalanick asked Levandowski to destroy the documents in question. Uber had to present the information by March of this year but didnt report its findings until June.

Ubers June 8 filing reads:

On or about March 11, 2016, Mr. Levandowski reported to Mr. Kalanick, Nina Qi and Cameron Poetzscher at Uber as well as Lior Ron that he had identified five discs in his possession containing Google information. Mr. Kalanick conveyed to Mr. Levandowski in response that Mr. Levandowski should not bring any Google information into Uber and that Uber did not want any Google information. Shortly thereafter, Mr. Levandowski communicated to Uber that he had destroyed the discs.

This was around the same time that Levandowski began consulting for Ubers self-driving arm, as we reported.

The ride-hail company maintains that none of these documents made it to Uber and that Kalanick did not encourage Levandowski to bring the files to the company, a condition that was also included in his employee agreement. On May 30, Uber fired Levandowski, who pleaded the Fifth Amendment earlier in the case, for not complying with the courts orders.

Uber was also directed by the court to produce a report from Stroz Friedberg, a forensic firm that Uber had hired to conduct a due diligence report on Otto before the acquisition. The report could reveal if Uber was made aware of any Alphabet technology Levandowski may be using within Otto.

Now Stroz is required to produce the report, the identities of the Otto employees that participated in the report and any documents those employees produced for the report.

Levandowski, who is not a party to the suit and is not represented by Ubers attorneys, previously argued that those documents are protected by attorney-client privilege. The judge disagreed and compelled Uber to produce the report.

Ubers attorneys did not hire Stroz on behalf of Levandowski and Uber; they hired Stroz to investigate Levandowski, the order reads.

It follows, then, that an order compelling Stroz to produce these materials does not violate Levandowskis Fifth Amendment privilege against compelled self-incrimination.

Uber is in the midst of navigating a major upheaval, with Tuesdays resignation of its CEO Travis Kalanick and the shuffling of key board members, but this lawsuit could prove to be the companys biggest threat. The embattled ride-hail player could face criminal charges over the possession of stolen documents, though the judge has previously chided Alphabet for lack of evidence that those files Levandowski allegedly downloaded made it to Uber.

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Alphabet says Travis Kalanick knew one of Uber's acquisitions had taken Alphabet files - Recode

Ousted Uber CEO Travis Kalanick may have known a star engineer possessed trade secrets stolen from Google, according to a recent court filing.

The court case centers on Waymo, the self-driving car unit of Google-parent Alphabet, and Anthony Levandowski, an engineer who left Waymo to start his own company, Otto, that was later acquired by Uber.

Waymo alleges Levandowski took 14,000 documents with him, including trade secrets. Waymo attorneys filings released this week suggest that Kalanick knew Levandowski possessed, and later destroyed, some of the information in question:

On or about March 11, 2016, Mr. Levandowski reported to [Travis] Kalanick, Nina Qi and Cameron Poetzscher at Uber as well as Lior Ron that he had identified five discs in his possession containing Google information. Mr. Kalanick conveyed to Mr. Levandowski in response that Mr. Levandowski should not bring any Google information into Uber and that Uber did not want any Google information. Shortly thereafter, Mr. Levandowski communicated to Uber that he had destroyed the discs.

Levandowski has exercised his Fifth Amendment rights and has largely been silent on what is in his possession. But a judge told Uber to use "the full extent of their corporate, employment, contractual and other authority" to compel Levandowski to return the documents by May 31. When Levandowski didn't deliver, he was fired.

New filings this week, though, indicate that Uber may have had access to those files earlier, and allowed them to be destroyed prior to the deadline. The information, previously unearthed by TechCrunch, sheds more doubt on the already murky relationship between Levandowski and his former employers at Uber.

"No statement of any destruction was provided pursuant to the Court's Order by the March 31 deadline," Waymo's lawyers wrote in a motion. "Yet, over two months later, Defendants Uber's and [Otto's] June 5 response to Waymo's expedited interrogatory revealed that documents were destroyed, allegedly at Uber's direction, back in March 2016."

The timeline of when Levandowski ended his tenure at Waymo and began negotiating with Uber has become central to the case.

Levandowski collected $120 million from Google, despite involvement with at least one start-up that would ultimately compete with the company, the case alleges. Waymo's lawyers said Levandowski was already trying to staff up his competing start-up, Otto, while he worked at Google but he waited until he got his payout to make the details of Otto public.

Uber, Kalanick and Levandowski's attorney did not immediately respond to CNBC requests for comment.

It all comes amid a rocky time within Uber, after reports of sexual harassment and gender bias led to an internal investigation into workplace culture. The company is also without top leadership now that Kalanick has resigned in the face of an investor revolt.

"This is certainly a part of the workplace culture: toe stepping, don't be afraid to get in people's faces," Kate Bischoff of tHRive Law & Consulting told CNBC last week. "'Oh, we should hire the guy from Waymo' that's not something outside the realm of possibility when you've created a culture that wants to ride the line."

The dispute between Waymo and Uber is playing out in two different arenas: In addition to the civil court case, the case has also been referred to the U.S. attorney for investigation of the possible theft of trade secrets.

"There are a whole host of variables that the government takes into account," Phil Bezanson, white collar partner at Bracewell, said last week. "Corporate culture is one, tone at the top, pervasiveness of wrongdoing, how the company responded. Because we have so many different subject matter issues, an overall corporate culture assessment is a good thing. The DOJ will pay close attention to it."

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Uber CEO Travis Kalanick may have known about stolen trade secrets, court filing indicates - CNBC