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Pondering Palazzolo: Why Do We Continue to Ask the Wrong Questions?

March 2002

Citation: ELR 10367

Author: Michael Allan Wolf

I must confess that I first read the U.S. Supreme Court's opinions in Palazzolo v. Rhode Island1 with more than a bit of apprehension—not just because I was afraid about the fate of the nation's wetlands, but, more selfishly, because there was just the slightest chance that the Justices would abandon the highly problematic and unnecessarily confusing regulatory takings approach once and for all. If the Court had sworn off the practice of applying the Takings Clause to regulations affecting the use or value of private property, then much of the scholarship I was pursuing at the time would have been worthless (or, perhaps, worth even less).

Thankfully, for Mr. Palazzolo, at least for the moment,2 the Justices only further muddied the waters—or should I say further mucked up the swamp—allowing me this and other opportunities to point out the drawbacks of the Court's approach. Basically, what this Dialogue is designed to demonstrate is that, with Palazzolo, and soon with Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency,3 the Court continues to ask the wrong questions. As each new, confusing, regulatory takings case emerges from the Court—usually at the end of the term, hidden behind more newsworthy decisions—we are left with at least one more question to ask in our attempt to figure out if the government has once again indirectly violated the Takings Clause.

The author is a Professor of Law and History, University of Richmond. The author thanks John Turner for inviting him to share these ideas with a distinguished panel of experts at the Environmental Law Institute's Associates Seminar on September 6, 2001. Delphine Pioffret provided expert research assistance in an attempt to bring some aura of authority to the ideas of the author.

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