Thursday, January 15, 2009

Fenster on Lingle and the Stubborn Incoherence of Regulatory Takings

Mark Fenster (Florida) has posted The Stubborn Incoherence of Regulatory Takings on SSRN.  Here's the abstract:

Lingle v. Chevron (2005), the Supreme Court's most recent effort to sort the complex federal constitutional regulatory takings doctrine, resulted in what commentators have praised as a relatively unified and coherent "takings jurisprudence" and two-step adjudicatory roadmap for federal and state courts. This article reviews Lingle more than three years after its issuance to see the extent to which the Court succeeded in taming and explaining regulatory takings. It notes Lingle's successes, especially in disentangling the worst confusions regarding the relationship between regulatory takings and the substantive due process and in providing an understandable process by which state and lower federal courts have recently been resolving federal constitutional takings litigation. But Lingle did not -- and, this article argues, could not -- thoroughly disentangle and bring coherence to a doctrine that past cases and current disputes over real property, the environment, and land use planning make stubbornly unresolvable in the abstract. The so-called Penn Central ad hoc balancing test ultimately brings a degree of incoherence to "takings jurisprudence" -- an incoherence that allows courts sufficient room to adjudicate difficult cases and protect the institutional deference that has become central to post-New Deal review of administrative decisionmaking.

Ben Barros

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