Takings Law Made Hard

Abstract

The novel opinion of Ninth Circuit Judge Jay Bybee in Guggenheim v. City of Goleta could threaten the tortured jurisprudence that has protected regulatory takings and other property rights infringements from Fifth Amendment challenges. This article describes that jurisprudence, explains the economic and legal thinking underlying Judge Bybee’s opinion, and identifies a number of technical deficiencies with his opinion. The Supreme Court will likely take up an appeal of Judge Bybee’s opinion; hopefully it will use that opportunity to correct the Court’s many errors that have eroded property rights.