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Deciphering and Extrapolating: Searching for Sense in Penn Central

18 Pages Posted: 28 Mar 2012  

R. S. Radford

The Radford Center for Law, History & Economics

Luke Anthony Wake

Pacific Legal Foundation

Date Written: February 28, 2012

Abstract

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.

Suggested Citation

Radford, R. S. and Wake, Luke Anthony, Deciphering and Extrapolating: Searching for Sense in Penn Central (February 28, 2012). Ecology Law Quarterly, Vol. 38, No. 3, p. 731, 2012. Available at SSRN: https://ssrn.com/abstract=2012642

R. S. Radford (Contact Author)

The Radford Center for Law, History & Economics ( email )

Davis, CA 95616
United States

Luke Anthony Wake

Pacific Legal Foundation ( email )

930 G Street
Sacramento, CA 95814
United States

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