Friday, December 6, 2013

Eagle on Penn Central's Four Factor Test

SeagleSteven Eagle (George Mason) has posted The Four-Factor Penn Central Regulatory Takings Test (Penn State Law Review) on SSRN.  Here's the abstract:

The Article examines the ad hoc, multifactor, regulatory takings doctrine derived from Penn Central Transportation Co. v. City of New York. It analyzes the conventional three-factor characterization of the Penn Central tests, and concludes that a four-factor approach better captures the dynamics of Penn Central analysis. “Parcel as a whole,” conceptually regarded as delimiting the relevant parcel for the Penn Central inquiry, in fact interacts with the “economic impact,” “investment-backed expectations,” and “character of the regulation” tests.

While the four-factor analysis advocated here is conceptually better and enhances understanding of how Penn Central operates, the doctrine remains under-theorized, subjective, with its factors mutually referential, and unable to provide a reliable guide to courts or litigants.

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