Deciphering and Extrapolating: Searching for Sense in Penn Central
R. S. Radford
The Radford Center for Law, History & Economics
Luke Anthony Wake
Pacific Legal Foundation
February 28, 2012
Ecology Law Quarterly, Vol. 38, No. 3, p. 731, 2012
The Supreme Court has labeled Penn Central Transportation Co. v. City of New York the "polestar" of its regulatory takings doctrine. Yet Penn Central’s three-part balancing test has been widely criticized as offering nothing more than an amorphous, ad hoc framework that provides little guidance for litigants or courts reviewing takings claims. In the absence of a well defined and predictable takings doctrine, the lower courts are left grasping to make sense of Penn Central, and to extrapolate an intelligible standard from its framework. In this article, we examine the origins and interpretations of Penn Central, and identify some of the difficulties raised in its application. We explore some of the latest issues the lower courts have been struggling with in fleshing out the doctrine, which may warrant a grant of certiorari if the Roberts Court is willing to bring clarity and cohesion to regulatory takings law.
Number of Pages in PDF File: 18
Date posted: March 28, 2012
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