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Penn Central for Tomorrow: Making Regulatory Takings Predictable

June 2009

Citation: ELR 10457

Author: Kenneth Miller

In 1978, after more than 50 years of silence on regulatory takings, the U.S. Supreme Court decided Penn Central Transportation Co. v. City of New York. Penn Central has since been referred to as the "polestar" of regulatory takings jurisprudence;2 however, no clear method of applying the multi-part ad hoc factual analysis of Penn Central has emerged. The Penn Central analysis has instead created confusion in the field with case law being anything but "unified."

In the years following Penn Central, the Supreme Court adopted a number of per se rules and bright-line tests in an attempt to clarify the field of regulatory takings. Toward the end of the era of Chief Justice William H. Rehnquist, however, the Supreme Court began to stray from these rules, abrogating and confusing some and entirely doing away with others. Confusion became so marked that commentators described regulatory takings as "muddled," and "one of the most doctrinally confused areas of constitutional law."

In 2005, the Supreme Court decided Lingle v. Chevron U.S.A., Inc. The decision clarified which per se rules the Court recognized, and reiterated that the Penn Central ad hoc factual inquiry was the controlling test for regulatory takings. Although Lingle shed light on regulatory takings' per se rules, the case did not clarify the basic Penn Central test. Thus, although Lingle clarified which test applies, the actual application remains clouded.

Kenneth Miller is a J.D. candidate, 2009, William S. Richardson School of Law, University of Hawaii at Manoa. This Article was the first-prize winner in the Ninth Annual Program for Judicial Awareness Writing Competition, sponsored by the Pacific Legal Foundation. For more information, visit Pacific Legal Foundation's website at www.pacificlegal.org.

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