Document Type

Article

Publication Title

John Marshall Law Review

Abstract

My major task in this Symposium is to supply the golden mean between the two previous articles. Professor Dale Whitman has offered us a rigorous legal analysis of various precedents in this vexed area of land use law. Thereafter, Professor Richard Green supplied an insightful economic analysis of all the land use material fits together. My task is to blend some law with some economics in order to address the Supreme Court's recent decision in Lingle v. Chevron USA, Inc. I hope to examine the (negative) contribution that the Supreme Court's decision has made to a systematic understanding of the larger law governing the taking of private property. In order to do so I shall divide the analysis into five parts. The first analyzes the doomed test of a regulatory taking that the Supreme Court applies in Agins v. City of Tiburon. The second part analyzes the peculiar bit of economic protectionism that is found in Hawaii Act 257. The third part analyzes and applies the well-known tripartite test for takings articulated by Justice Brennan in Penn Central Transportation Co. v. City of New York. The fourth part critiques the Penn Central decision, and the fifth part defends the proposition that the current muddle in takings law is not an accident, but comes from the consistent unwillingness of the Supreme Court to apply the systematic view of private property that has developed on the private law side into constitutional law.

First Page

593

Volume

40

Publication Date

2007

Download

Share

COinS