Jump to Navigation
Jump to Content

Regulatory Takings, Methodically

March 2001

Citation: 31 ELR 10313

Issue: 3

Author: Eric T. Freyfogle

The regulatory takings jurisprudence of the U.S. Supreme Court has become an ungainly body, awkward for citizens and judges to apply and challenging as well, one might guess, for the Court itself, as it continues to reshape the law to better serve its aims. One cause of this predicament: leading decisions have arisen from peculiar facts and messy procedural contexts, yielding rulings that are hard to apply elsewhere. Another cause: the divergent views of Court members on the deference properly due the work of land use regulators. Yet, the fundamental cause might simply be the deceptive complexity of the takings issue itself. Case-by-case decisionmaking has fragmented the enigma in problematic ways. Decisions sensible on the facts and in isolation fit together poorly. Small parts, broken off for separate treatment, have unexpectedly grown into critical doctrinal elements.1 Guiding principles once deemed central have somehow faded from significance, without plan or reason.2 Decisions now turn on factual considerations that seem unimportant if not arbitrary, while more vital facts go under-weighed.3

One path that might lead to greater coherence is to reconsider the doctrine methodically, from the bottom up, reaffirming fundamental pieces and using those pieces consistently to craft law that responds, not merely to landowner interests and government needs for flexibility, but to the vigor of private property itself, as an evolving, communally constructed institution. To do that, the Court would need to admit openly what is obvious enough to most people: that property norms change over time with the evolution of social values and circumstances. Drawing upon that reality, takings law should aim, not to protect some irreducible core of property—much less to protect economic expectations divorced from law—but instead to distinguish between legitimate and illegitimate changes in ownership law. Takings doctrine, that is, needs a more procedural focus. Indeed, one of its chief functions should be to promote better decisionmaking processes, by regulators everywhere; processes that give due weight to the public interest, to the vital aims of property, and to the fairness concerns of takings law itself.

The author is the Max L. Rowe Professor of Law, University of Illinois.

You have the 'view field_article_product' permission. However, this node has no associated file download.