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Equal protection

Constitutional Law

2008

Fordham Law School

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Full-Text Articles in Law

Problem Of Equality In Takings, The , Nestor M. Davidson Jan 2008

Problem Of Equality In Takings, The , Nestor M. Davidson

Faculty Scholarship

The Supreme Court is finally beginning to bring clarity to the law of regulatory takings and in the process is bringing to the fore a previously submerged theme in the jurisprudence: regulatory takings as a question of distributional justice and horizontal equity. This Article argues that this equality dimension is fundamentally problematic. On a theoretical level, privileging norms of equality engrafts political process rationales for heightened scrutiny onto groups defined solely by the differential burden of a regulation, an exercise in circularity. Equally troubling is the inverted political economy of regulatory takings claims that is likely to result: the greatest …