The Fairness Dimension of Takings Jurisprudence
Cordes, Mark W.
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This Article will examine the "fairness" dimension of takings jurisprudence from both the macro and micro perspectives. First, it will show why it is fair to generally strike the balance so that most costs must be borne by landowners. This is termed the macro-fairness issue. Despite the ad hoc nature of current takings analysis, the big picture is clear: most economic costs must be borne by the individual landowner. This is true even when the diminution in property value is fifty percent or more. The second dimension of fairness is the micro-fairness issue. Micro-fairness addresses under what circumstances "fairness and justice" dictate shifting the regulatory cost to the public through just compensation. The Supreme Court assumes fairness concerns are incorporated into the Penn Central balancing test. While this is generally true, this Article explores how the test incorporates fairness, and what types of fairness concerns should direct its application. Whereas the idea of "collective responsibility" largely explains the macro-fairness issue, concerns about "ganging up" and "being blindsided" largely control the micro-fairness issue. This Article's analysis is divided into three parts. Part II will begin by briefly reviewing the development of regulatory takings doctrine. Part III will then look at the macro-fairness issue; why fairness permits and even requires that most costs of land-use restrictions, even substantial ones, be borne by affected landowners rather than shifted to the public. Finally, Part IV will examine micro-fairness concerns and when fairness and justice suggest a regulatory taking has occurred, shifting costs from affected landowners to the public.