Academic journal article Brigham Young University Law Review

Property Tests, Due Process Tests and Regulatory Takings Jurisprudence

Academic journal article Brigham Young University Law Review

Property Tests, Due Process Tests and Regulatory Takings Jurisprudence

Article excerpt


The United States Supreme Court recently clarified in Lingle v. Chevron U.S.A., Inc. that its often-expressed "substantially advance" formulation sounds in due process, and thus should be rejected as an appropriate takings test. The Court also explained that due process provides an independent and legitimate basis for attacking government deprivations of private property. Paradoxically, Lingle also reaffirmed as the Court's principal takings test the ad hoc, multifactor formulation in Penn Central Transportation Co. v. City of New York.

The Article asserts that Penn Central itself is a due process test. Also, building upon Lingle's incomplete analysis, it outlines separate and independent takings and due property tests. The proffered due process test is based on the need for meaningful scrutiny. The suggested takings test applies property law concepts in determining whether government arrogated private property to itself, and thus must compensate. Most particularly, the Article advocates the "commercial unit" as a necessarily objective measure of what constitutes a relevant interest for takings analysis.


The United States Supreme Court's regulatory takings jurisprudence has long been infamous for its incoherence.1 The lack of cohesion in takings law was both exemplified and exacerbated by the Court's 2005 decision in Lingle v. Chevron U.S.A., Inc.2 In Lingle, the Court reviewed its often-articulated statement, first made in Agins v. City ofTiburon,3 that compensation is required under the Takings Clause4 for a regulatory action that "does not substantially advance legitimate state interests."5 The Lingle Court unanimously renounced its prior standard as merely an inapposite takings "formula." The gravamen of the Court's opinion was that the "substantially advances" standard is a substantive due process test, and that the application of such a test "is not a valid method of identifying regulatory takings."6 The problem highlighted by Lingle is not that the "substantially advances" test is a bad test, but that clarity in takings jurisprudence would be greatly enhanced by a test more attuned to traditional property law concepts.

Even as it re-characterized the "substantially advances" standard as a due process test, Lingle affirmed that an owner deprived of a property interest has a separate due process cause of action.7 Thus, taken as a whole, Lingle stands for the proposition that both asserted government takings of property, and asserted government deprivations of properly without due process of law, raise separate, legitimate legal issues to be resolved using different legal standards.

Yet the Court's ipse dixit cannot banish substantive due process from its regulatory takings jurisprudence for the simple reason that the Court's own general takings test is based on substantive due process.8 The Court's preoccupation with the property owner's status in its regulatory takings jurisprudence prevents its regulatory takings test from being a true takings test, since, as the Court itself noted in 1893, "just compensation is for the property, and not to the owner."9

This Article first examines the substantive due process origins of the Supreme Court's takings jurisprudence.10 The Article analyzes how the Court's principal regulatory takings doctrine, established in Penn Central Transportation Co. v. City of New York,11 remains steeped in due process.12 The Article also scrutinizes the due process tests employed by the United States Courts of Appeals.13 These tests typically are based on the "egregious government misconduct" test developed by the Supreme Court in a different context.14 The Article then proposes to replace the Court's ostensible takings test, embodied in Penn Central, with a takings test properly grounded in relevant property law principles.

The concern for "fairness," that is the leitmotif of Penn Central, focuses on the relationship between property and the owner deprived of that property. …

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