Law Commons^™

More Questions Than Answers: Situating Judicial Takings Within Existing Regulatory Takings Doctrine, Michael B. Kent Jr.

Michael B. Kent Jr.

In Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection, a four-member plurality of the Supreme Court endorsed the idea that certain judicial action, as well as action by other branches of government, might effect a taking of private property. In explaining its theory of judicial takings, however, the plurality did little to explain how such takings fit within the larger doctrinal and analytical framework for regulatory takings. This essay evaluates whether the plurality’s discussion of judicial takings is consistent with the preexisting takings framework and how it might impact takings cases in the future. Ultimately, the plurality’s …

Theoretical Tension And Doctrinal Discord: Analyzing Development Impact Fees As Takings, Michael B. Kent Jr.

Michael B. Kent Jr.

One of the lingering questions about the law of regulatory takings concerns the proper scope and application of the Supreme Court’s exactions jurisprudence, known as the Nollan/Dolan test. A recurring issue in the case law, and of particular importance to this article, is the extent to which the Nollan/Dolan framework applies to takings challenges brought against development impact fees.

By and large, the decisions on the issue split over two primary questions. First, there is a debate about whether Nollan/Dolan is limited to physical exactions or whether the test might also apply to monetary exactions as well. Second, there is …

Construing The Canon: An Exegesis Of Regulatory Takings Jurisprudence After Lingle V. Chevron, Michael B. Kent Jr.

Michael B. Kent Jr.

Regulatory takings has long been considered one of the more confused areas of constitutional analysis. Since the Supreme Court's opinion in Penn Central Transportation Company v. City of New York, the law of regulatory takings has been characterized by varying analytical tests, competing theories, seemingly results-oriented decision-making, and a conflation with the law of substantive due process. In 2005, however, the Court made substantial strides in bringing some clarity to this area with its decision in Lingle v. Chevron U.S.A., Inc. In that case, the Court unanimously rejected the substantially advances test, demonstrating a rare willingness to discard prior precedent …