Cleaning Up the Rest of Agins: Bringing Coherence to Temporary Takings Jurisprudence and Jettisoning "Extraordinary Delay"
May 2011
Citation:
41
ELR 10435
Issue
5
After decades of confusion, the fuzzy edges of regulatory takings doctrine have grown crisper. No longer a battleground for disputes over regulatory motivation, wisdom, and validity, the takings analysis now focuses squarely on the effect a regulation has on a property owner. However, one vestige of the discredited, substantive due process-like inquiry of past takings cases lingers. To prove a temporary taking, a property owner still has to show that the government committed "extraordinary delay," typically accompanied by "bad faith." Such an inquiry is antithetical to the modern understanding of the Takings Clause.
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