Takings

[Marty Lederman]

The doctrine is such a mess, I'm not sure there is any such a "good
overview" animal (not yet, anyway).  There are very good overviews -- but
none intended to be doctrinally comprehensive -- in, e.g., Jed Rubenfeld's
article on "Usings," and Fischel's 1995 book "Regulatory Takings."  I'm told
that Tom Merrill has a very good recent book, too.  (Certainly his
scholarship on this subject is among the best.)  On the theoretical side,
Michelman's 1967 article remains the best single treatment.  (Of course,
Epstein's book has its proponents, but I'm not among them and, more
importantly, it has (for better or worse) had very little impact on the
law.)  Bill Treanor has written some really terrific historical articles.

One significant caveat:  If your aim is to figure out where (or what) the
law "is" at this moment, it is critical that you consult works that deal
with the Court's recent decisions in Palazzolo, Brown, and, especially,
Tahoe-Sierra.  In my view, the six-Justice majority in T-S, and SOC's
concurrence in Palazzolo, have signaled the death-knell -- at least until a
change in SCOTUS composition -- of Lucas, and of the Scalia/Rehnquist
attempt to revolutionize takings law.  JPS has prevailed, at least for the
time being, and Penn Central "balancing" is ascendant.

Even so, the Ninth Circuit recently has, quite shockingly in my view,
actually invalidated a Hawaii gas-station-franchise rent-control statute on
grounds that the rent control doesn't "substantially advance" the interests
the legislature is aiming at.
http://caselaw.lp.findlaw.com/data2/circs/9th/0215867ap.pdf.   Not even a
pretense of applying Penn Central.  As the dissent explains,
this is in effect incorporating a heightened means/ends analysis into
takings law -- which could threaten to undermine the legislative deference
ordinarily applied in rational-basis view under standard-issue equal
protection and due process analysis.  Hawaii has until July 30th to file a
cert. petition, see http://www.supremecourtus.gov/docket/03a1040.htm; if the
 Court grants the petition, it will potentially be an interesting and very
important case.


----- Original Message ----- 
From: "Grant Huscroft" <ghuscrof at uwo.ca>
To: <conlawprof at lists.ucla.edu>
Sent: Sunday, June 27, 2004 12:02 PM
Subject: Takings


> Could anyone suggest a good introduction/overview of regulatory
> takings?  Off-list replies would be appreciated.
>
> Thanks,
> Grant
>
>
> Grant Huscroft
> Faculty of Law
> University of Western Ontario
> London, Ontario
> N6A 3K7
>
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