Monday, August 20, 2007
Michael B. Kent Jr. (John Marshall Law School -Atlanta) has posted Construing the Canon: An Exgesis of Regulatory Takings Jurisprudence after Lingle v. Chevron on SSRN. Here's the abstract:
Regulatory takings has long been considered one of the more confused areas of constitutional analysis. Since the Supreme Court's opinion in Penn Central Transportation Company v. City of New York, the law of regulatory takings has been characterized by varying analytical tests, competing theories, seemingly results-oriented decision-making, and a conflation with the law of substantive due process. In 2005, however, the Court made substantial strides in bringing some clarity to this area with its decision in Lingle v. Chevron U.S.A., Inc. In that case, the Court unanimously rejected the “substantially advances” test, demonstrating a rare willingness to discard prior precedent as well as to divorce takings law from that of due process. Moreover, the Court unanimously reaffirmed five other decisions (Penn Central, Loretto, Nolan, Lucas, and Dolan) that now govern the regulatory takings inquiry.
This article argues that these five decisions, along with Lingle itself, should be considered uniquely authoritative (akin to a “canon” of sacred writings) with regard to takings analysis. By reading this “canon” exegetically – that is, by divining the intent of the Court through the language and context of the decisions viewed as if they were components of a single, unified text – it is possible to perceive a way out of the takings “muddle.” Viewing the cases in this manner, the “canon” presents a clearer picture of the overarching themes and characteristics of regulatory takings, as well as a greater coherence in the frameworks under which takings claims should be analyzed. This article seeks to elucidate those themes and characteristics, explain the analytical frameworks, and raise issues that continue to require the Court's attention.
[Comments are held for approval, so there will be some delay in posting]