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- Title
PROPERTY RIGHTS AND TAKINGS BURDENS.
- Authors
EAGLE, STEVEN J.
- Abstract
The Fifth Amendment Takings Clause was interpreted through the nineteenth century as referring only to physical takings or ousters of possession. Justice Holmes's enigmatic 1922 opinion in Pennsylvania Coal Co. v. Mahon was the genesis of the contemporary "regulatory takings" doctrine, which reached full expression in 1978 in Penn Central Transportation Co. v. City of New York. The ad hoc, threefactor test of Penn Central, generally deemed incoherent and chaotic, focused on regulatory burdens placed upon landowners, not with respect to specific rights but rather with regard to a specified relevant parcel ("parcel as a whole"). In 2017, in Murr v. Wisconsin, the Court conflated the elements of what constitutes the relevant parcel and the three factors pertaining to whether that parcel had been taken. This Article discusses theories of "property," the merits of balancing tests versus more objective rules, and how these play out in the Murr majority opinion and dissents. It also treats the importance of Murr's mandate to internalize those externalities that were irrelevant prior to regulation. Given the universal unhappiness with regulatory takings jurisprudence, this Article also considers arguments for reconsidering regulatory takings as due process deprivations.
- Subjects
PROPERTY rights; TAKINGS clause (Constitutional law); MURR v. State of Wisconsin (Supreme Court case)
- Publication
Brigham-Kanner Property Rights Journal, 2018, Vol 7, p199
- ISSN
2326-7437
- Publication type
Article