Academic journal article Environmental Law

A Requiem for Regulatory Takings: Reclaiming Eminent Domain for Constitutional Property Claims

Academic journal article Environmental Law

A Requiem for Regulatory Takings: Reclaiming Eminent Domain for Constitutional Property Claims

Article excerpt

I.    INTRODUCTION                                                  308 II.   THE INDETERMINATE LIMINAL SPACE OF REGULATORY TAKINGS         312 III.  FUNDAMENTAL INCONGRUITIES: THE MUDDLED MESS OF       REGULATORY TAKINGS                                            321       A. Irreconcilable Differences in Jurisprudential Philosophy   324       B. Justice Scalia's Discursive Move to Undermine Traditional          Nuisance Law                                               335       C. Lochner, Lingle, and the Revival of Substantive Economic          Due Process                                                339 IV.   A WAY FORWARD                                                 344       A. Eminent Domain Has a Long Record of Balancing the Police          Power and Private Property                                 346       B. Reject Natural Rights Ideology                             354       C. Reinvigorate the Harm/Benefit Distinction in Nuisance and          Rethinking Lingle                                          364       D. Require a Cognizable Property Right and an Act of          Appropriation                                              366       E. Balance the Benefits and Burdens                           372 VI.   CONCLUSION                                                    375 

I. INTRODUCTION

For property scholars, writing about the Takings Clause of the Constitution is a bit like English scholars writing about Shakespeare. It signals that one has reached an academic milestone and is prepared to tackle one of the most confounding legal doctrines facing the courts. But unlike the Shakespeare scholar who has 37 plays and 154 sonnets to work with, takings scholars have only those epigrammatic twelve words, "nor shall private property be taken for public use without just compensation," (1) and the framers left us with virtually no helpful guidance, interpretive principles, or even an alphabetical concordance. (2) Wandering in the dark, the courts issue ambiguous opinions, scholars opine endlessly on the abstruse arguments contained therein, then judges and their clerks read the labyrinthine scholarship, only to rely on out-of-context quotations and obscure principles in writing their bewildering and often incomprehensible opinions. This academic feedback loop is taken to extremes in Supreme Court scholarship and the high Court's opinions on the doctrine of regulatory takings. (3)

A regulatory taking is deceptively simple: it occurs when a government regulation of property goes too far in affecting property rights or values and requires compensation to support it. (4) But what constitutes property, what constitutes a regulation, and when does the effect of the regulation go too far are questions that have spawned hundreds of books and articles, thousands of judicial opinions, and still we are left with more questions than answers. One of the reasons for the sheer quantity of scholarship on the subject is that, with each Delphic pronouncement from the Court, the foundations shift, the questions change, and if one issue is resolved five more are raised. In large part, the doctrine is a mess because the Court has created a constitutional doctrine out of whole cloth just in the past forty years, (5) and in that time it has rejected most of the common law's long-standing principles, as though regulations negatively affecting property are a novel phenomenon. (6)

With countless scholars weighing in, it is not as though the world needs another article on the Takings Clause. Yet here I offer one, in part to show that I have reached that academic milestone, and in part to suggest that perhaps the lack of comprehensible resolution in the doctrine indicates that the experiment has failed. Perhaps more accurately, it is time to lay the doctrine to rest, sing a requiem, release our clods of dirt onto the hollow casket, and find a different approach to balancing the interests of private property with the public welfare. …

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