Monday, January 28, 2008

Barros on Hadacheck v. Sebastian

I've posted Hadacheck v. Sebastian on SSRN.  Here's the abstract:

This short encyclopedia entry discusses Hadacheck v. Sebastian and its relevance to contemporary regulatory takings jurisprudence. The entry describes the Hadacheck litigation and the treatment of Hadacheck in the Supreme Court's more recent regulatory takings cases. It notes four reasons why caution should be used before applying Hadacheck to contemporary regulatory takings issues: (1) the case is ambiguous about the diminution in value actually suffered by the plaintiff; (2) Hadacheck was decided before Pennsylvania Coal v. Mahon, which arguably marked a shift in regulatory takings law; (3) the Court's holding in Lucas v. South Carolina Coastal Council that a total diminution in value is a per se taking undercuts one possible reading of Hadacheck; and (4) that the Court's recent decision in Lingle v. Chevron suggests that the substantive due process analysis in early cases like Hadacheck should not be a part of the regulatory takings analysis.

This really is short, and might be of interest to those of you who teach Hadacheck as part of your takings unit.

Ben Barros

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I've always wondered why Justice Holmes did not dissent from the Court's ruling in Hadachek, given the positions he took on the Massachusetts Supreme Judicial Court (e.g., in Miller v. Horton, 152 Mass. 540 (1891)), and especially given his opinion, just 7 years after Hadachek, in Penn. Coal v. Mahon.

Posted by: Dan Cole | Jan 27, 2008 6:54:47 AM

That's a very good question. I've blogged before about a note that I found in the archives about Holmes's position in Miller v. Schoene. I didn't find anything in the archives re: Hadacheck. Part of it might be the facts -- in re-reading the case to write the encyclopedia entry, I was reminded of how sloppy the opinion is, and how unclear the underlying facts are. How you take the case depends in large part on how you see the facts. Same can be said, I suppose, about Mahon.

Posted by: Ben Barros | Jan 28, 2008 8:37:58 AM

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