The Penn Central Test and Tensions in Liberal Property Theory
32 Pages Posted: 13 Aug 2006
This Article contributes a conference on takings law sponsored by the Georgetown Environmental Law and Policy Institute and held at Harvard Law School October 2005. The Article uses background theories of property and government to provide a partial explanation of the U.S. Supreme Court's precedent on regulatory takings.
The Article advances two explanatory theses. First, the Penn Central test is not as ad hoc and case-specific as is often assumed. Although the three factors in this test can vary sharply in application, the different factors are regularly construed together to advance one of two theories of government: a classical theory, reflecting the commitments of classical liberalism, and a modern theory, reflecting commitments associated with a centralized regulatory state. Second, the Court's most moderate Justices have used one or the other of these two theories depending on factors including: whether the right allegedly taken is essential to the species of property to which it is attached; whether legal precedent has historically treated that right as essential to the species of property in question; and how compelling are the reasons to regulate potential abuses of that right.
While these insights by no means explain regulatory takings doctrine completely, they are two significant contributing factors in any more comprehensive explanation. They also offer a normative suggestion: Perhaps the Supreme Court's takings jurisprudence is less muddled as a whole than it seems from reading either extreme set of cases in isolation.
Keywords: takings, regulatory takings, eminent domain, Penn Central, Lucas
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