Takings Jurisprudence as Three-Tiered Review
Cordes, Mark W.
MetadataShow full item record
Takings jurisprudence has long been and remains, in the opinion of many, a constitutional quagmire, with little in the way of predictable results or coherent principles. The Supreme Court itself has acknowledged the largely ad hoc nature of its takings analysis, emphasizing the fact-sensitive nature of takings decisions and its reluctance to articulate precise formulae in this area. Moreover, although articulating a variety of standards and tests, such as “investment-backed expectations” and “economic viability,” the Court has not clearly stated their relation to each other or their precise meanings. This has led a number of commentators to lament these unclear standards, labeling this area of law an unworkable “muddle,” a “jumble of *2 confusing holdings,” an “enduring legal dilemma,” and a state of “doctrinal and conceptual disarray.” What is sometimes lost in the lament, however, is the degree to which the Court has established, with some clarity, three distinct types of takings concerns and three analytical approaches in resolving them. Thus, despite continued ambiguity on some details, the “big picture” of takings jurisprudence is shaping up rather nicely and in a way that is quite sensible. This has been particularly true in the last several decades, where in a number of decisions the Court has fleshed out the broad outlines of differing levels of takings review. Although these decisions are often seen as reflecting a growing protection of property rights, they in fact establish several distinct levels of protection depending upon the type of takings issue posed. As a practical matter, these distinct approaches provide heightened protection for landowners when autonomy and fairness concerns are present, but provide substantial latitude for government to regulate property for environmental and other purposes.