At Last, Some Clarity: The Potential Long-Term Impact of Lingle v. Chevron and the Separation of Takings and Substantive Due Process

Abstract:     
This short essay discusses the Supreme Court's recent decision in Lingle v. Chevron and its potential long-term impact on the Court's regulatory takings doctrine. Lingle involved a narrow (though important) issue of takings law, and on the surface it appears to be a relatively modest case. A deeper look, however, reveals that in its separation of substantive due process and regulatory takings, Lingle has tremendous potential to clarify regulatory takings doctrine. If this potential is fulfilled, Lingle is likely to be far more significant in the long term than Kelo v. City of New London, which has dominated the commentary about the Court's recent takings decisions. Lingle may also have the counter-intuitive effect of helping property-rights advocates (who were the putative losers in the case) by undercutting the precedential value of cases that help the government in takings battles.

Number of Pages in PDF File: 14

Keywords: Lingle, Chevron, Kelo, takings, just compensation, Mahon, substantive due process

JEL Classification: K11

Accepted Paper Series