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Regulatory Takings, Public Use, and Just Compensation After Brown

October 2003

Citation: 33 ELR 10807

Issue: 10

Author: Steven J. Eagle

This Article analyzes the potential impact on government regulation of private property rights of the U.S. Supreme Court's recent decision in Brown v. Legal Foundation of Washington.1 That case upheld mandatory Interest on Lawyers' Trust Accounts (IOLTA) programs. While Brown ensures continued funding for legal services for low- and moderate-income persons, it is difficult to reconcile with the Court's existing property and takings doctrines. Furthermore, although the decision was a victory for regulators, much of Brown's analysis favors landowners in future regulatory takings cases.

The Article begins with an overview of IOLTA and the Brown case and then discusses why the case is important. It proceeds to analyze, in separate sections, various aspects of the Takings Clause2; whether there was a per se "taking" of property, what we should make of the Court's dicta on the Public Use Clause, and the Court's holding that there was no violation of the Just Compensation Clause. Finally, the Article discusses how Brown is apt to affect regulatory takings law in the future in environmental and other contexts.

Steven J. Eagle is a professor of law at George Mason University, in Arlington, Virginia. He is the author of REGULATORY TAKINGS (2d ed. 2000 and annual supplements) and of numerous other scholarly and popular works on land use regulation and property rights. He studied economics at the City College of New York and is a graduate of Yale Law School.

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