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Editor: Stephen Clowney
Univ. of Arkansas, Fayetteville

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Friday, March 1, 2013

Are Regulatory Takings a Form of Lochnerism?

Jonathan Adler says no:

As a historical matter, Justice Stevens was correct that the first decisions obligating states to compensate  landowners for the taking private property for public use  (Chicago, Burlington & Quincy Railroad v. Chicago) and holding that the regulation of land use could require compensation if it “goes too far” (Pennsylvania Coal v. Mahon) date from the so-called “Lochner era.”  Curiously enough, the authors of these two opinions are, respectively, Justice John Marshall Harlan and Justice Oliver Wendell Holmes.  Why is this curious?  Because Justices Harlan and Holmes wrote the two dissenting opinions in Lochner.  So while contemporary commentators and critics may see regulatory takings doctrine as Lochnerism reborn.  Those who challenged Lochner at the time apparently saw things differently.

Steve Clowney

http://lawprofessors.typepad.com/property/2013/03/are-regulatory-takings-a-form-of-lochnerism.html

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