Economic Substantive Due Process: Considered Dead is Being Revived by a Series of Supreme Court Land Use Cases

56 Pages Posted: 21 Dec 2013

Date Written: December 19, 2013


This article describes how the Supreme Court, in a series of land-use cases, is resurrecting economic substantive due process, which has been presumed dead since its rejection in the 1930s for blocking legislation aimed at fighting the Great Depression. The most dramatic step in this reversion to Lochner is Koontz v. St. Johns River Water Management District, a case handed down on June 25, 2013. Koontz extended the reach of Nollan v. California Coastal Commission and Dolan v. City of Tigard, cases that expanded takings law to include the lack of sufficient connection between a property interest required for mitigation of a permitted project and the project’s adverse impacts. Those cases changed the judicial standard for reviewing permit conditions requiring the dedication of land from rational basis to the heightened takings standard, which includes the government bearing the burden of persuasion. In Koontz, the Court ruled that this takings concept was applicable to the requirement that the permit applicant expend money to compensate for the impacts of the permitted activity despite the fact that the Fifth Amendment and previous case law confine takings analysis to property interests. The practical effect of Koontz is that courts must implement substantive due process review to a vast amount of permit decisions of local, state, and federal government. This article examines the doctrines of takings, substantive due process, and unconstitutional condition to arrive at the conclusion that the takings test created by Nollan, Dolan, and Koontz revives economic substantive due process. The article recognizes the legitimacy of the desire of property rights advocates for more than rubber stamp, rational basis review of progressively more stringent land-use regulation. To that end, the article concludes by proposing alternatives that accomplish this without resurrecting economic substantive due process that is a bad doctrine now for the same reasons it was rejected in the 1930s.

Keywords: substantive due process, takings, unconstitutional condition

JEL Classification: K11, K32

Suggested Citation

Want, Billy, Economic Substantive Due Process: Considered Dead is Being Revived by a Series of Supreme Court Land Use Cases (December 19, 2013). University of Hawaii Law Review, Vol. 36, No. 2, 2014, Available at SSRN: or

Billy Want (Contact Author)

Charleston School of Law ( email )

Charleston, SC 29402
United States

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Abstract Views
PlumX Metrics