Law Commons^™

Ten Arguments For The Abolition Of Regulatory Takings Doctrine, J. Peter Byrne

Georgetown Law Faculty Publications and Other Works

The Takings Clause of the Fifth Amendment prohibits the federal government from "taking" property for a public purpose without paying just compensation. The Supreme Court has come to interpret the clause to require that the government compensate real property owners in some unclear class of cases when regulation of the property has resulted in severe economic losses. The proposition that regulation alone, without appropriation, occupation, or use by the government, can work a taking is known as the "regulatory takings" doctrine.

The Original Understanding Of The Takings Clause And The Political Process, William Michael Treanor

Georgetown Law Faculty Publications and Other Works

The original understanding of the Takings Clause of the Fifth Amendment was clear on two points. The clause required compensation when the federal government physically took private property, but not when government regulations limited the ways in which property could be used. In 1922, however, the Supreme Court's decision in Pennsylvania Coal v. Mahon established a new takings regime. In an opinion by Justice Holmes, the Court held that compensation must be provided when government regulation "goes too far" in diminishing the value of private property. Since that decision, the Supreme Court has been unable to define clearly what kind …

Has The U.S. Supreme Court Finally Drained The Swamp Of Takings Jurisprudence? The Impact Of Lucas V. South Carolina Coastal Council On Wetlands And Coastal Barrier Beaches, Hope M. Babcock

Georgetown Law Faculty Publications and Other Works

This article argues that the Court's reliance on the law of property neither creates an internal inconsistency in takings law nor necessarily leads to further destruction of natural resources. Background principles of property law, such as custom and public trust, have long provided a basis for government protection of the public's interest in certain types of land, like the barrier beach David Lucas sought to develop.

Thus, the Lucas case need not be perceived as casting a constitutional cloud over laws protecting important ecosystems like wetlands and barrier beaches. The decision may not place these resources in greater danger from …

Takings Law And The Regulatory State: A Response To R.S. Radford, William Michael Treanor

Georgetown Law Faculty Publications and Other Works

In the Winter 1994 issue of the Fordham Urban Law Journal, R.S. Radford provided an illuminating review of Dennis Coyle's book Property Rights and the Constitution. Radford observes that, in addition to studying post-New Deal land use cases, Coyle "provides an ideological framework that illuminates several key strands in the constitutional jurisprudence of property law ... [and] sets forth his own theories of the vital role of private property in creating and maintaining the American constitutional system." Radford's review is a generally enthusiastic one. He sees Coyle's book as providing a much-needed corrective to "the existing pro-regulatory bias …