Character Counts: The 'Character of the Government Action' in Regulatory Takings Actions

42 Pages Posted: 3 Oct 2014

See all articles by Michael Lewyn

Michael Lewyn

Touro College - Jacob D. Fuchsberg Law Center

Date Written: 2010


The Supreme Court has held that when a government regulation reduces the value of property, and a property owner challenges the regulation under the Takings Clause of the Fifth Amendment, courts should consider (1) the economic impact of the regulation upon the property owner, (2) the effect of such regulation upon the property owner’s reasonable investment-backed expectations, and (3) the character of the government action. A 2005 Supreme Court decision, Lingle v. Chevron, held that courts must focus primarily on the severity of the burden that government imposes upon property owners. Many courts and commentators interpret this language to mean that courts must focus solely on such burdens, and may no longer consider the public purpose justifying regulation. This article disagrees, and asserts that even after Lingle, courts should consider the extent to which government regulation promotes the public good. This is so for two reasons. First, the Lingle Court authorized such inquiry by writing that the “character of the government action” factor includes whether a government program adjusts “the benefits and burdens of economic life to promote the common good.” Second, balancing private harm against public interest is simpler and easier to apply than other commentators’ interpretations of the “character of the government action” factor.

Keywords: Lingle, takings, land use, government action

Suggested Citation

Lewyn, Michael, Character Counts: The 'Character of the Government Action' in Regulatory Takings Actions (2010). 40 Seton Hall L. Rev. 597 (2010); Touro Law Center Legal Studies Research Paper Series. Available at SSRN:

Michael Lewyn (Contact Author)

Touro College - Jacob D. Fuchsberg Law Center ( email )

225 Eastview Drive
Central Islip, NY 11722
United States

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