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The Inevitable Failure of Nuisance-based Theories of the Takings Clause: A Reply to Professor Claeys

19 Pages Posted: 8 Jun 2005  

Stewart E. Sterk

Yeshiva University - Cardozo Law School

Abstract

Rejecting the proposition (advanced by Professor Eric Claeys) that the Rehnquist Court's conservatives have missed an opportunity to transform takings law, this commentary demonstrates that a nuisance-based theory cannot provide a comprehensive basis for takings clause jurisprudence. The commentary further establishes that no plausible vision of originalism supports a nuisance based theory, and concludes by arguing that judicial scrutiny of state and local land use practices is less deferential than it was at the inception of the Rehnquist Court.

Keywords: land use planning, nuisance, takings clause

Suggested Citation

Sterk, Stewart E., The Inevitable Failure of Nuisance-based Theories of the Takings Clause: A Reply to Professor Claeys. Northwestern University Law Review, Vol. 99, p. 231, 2004. Available at SSRN: https://ssrn.com/abstract=739264

Stewart E. Sterk (Contact Author)

Yeshiva University - Cardozo Law School ( email )

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