The Land Use Jurisprudence of Chief Justice Rehnquist and Justice Stevens: Two Views on Balancing Public and Private Interests in Property
Cordes, Mark W.
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This three-part article examines the separate and combined legacies of Chief Justice William H. Rehnquist and Justice John Paul Stevens in the area of regulatory takings jurisprudence as applied to land use controls. Part one of the article examines the U.S. Supreme Court’s takings jurisprudence during the tenure of Chief Justice Rehnquist and Justice Stevens, with special attention to their own contributions to regulatory takings analysis. Special focus is given to the 1978 decision in Penn Central Transportation Co. v. New York City. Part two of the article outlines the land use visions presented by Rehnquist and Stevens. In its simplest form, the Rehnquist vision is one emphasizing burdens on individual rights, while Stevens places a greater emphasis on a landowner’s responsibility to the community and focuses on the generality of regulation and the justification for restrictions. The article further elaborates on how Rehnquist’s and Stevens’ views support their respective visions. Finally, part three of the article examines three specific issues relevant to takings jurisprudence and the respective contribution Rehnquist and Stevens made to each. Those issues are (1) the role of the state’s regulatory interest in takings analysis, (2) how to define the relevant property for analyzing economic impact, and (3) reciprocity of advantage and generality of regulation.