Thursday, January 11, 2007

Eagle on Takings and Due Process

Steven J. Eagle (George Mason School of Law) has posted Property Tests, Due Process Tests and Regulatory Takings Jurisprudence on SSRN.  Here's the abstract:

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. Building upon Lingle, as the Court did not, the Article 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 objec-tive measure of what constitutes a relevant interest for takings analysis.

As regular readers know, this is an issue near and dear to my heart.  Eagle is a very perceptive commentator on takings issues, so this is definitely worth the read.

Ben Barros

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