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Unpublished Paper
The Supreme Court, 2001 Term—Leading Cases: Takings Clause—Regulatory Takings—Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 122 S. Ct. 1465 (2002)
Harvard Law Review (2002)
  • Alexander Volokh, Harvard University
Abstract

In 1922, Justice Holmes invented regulatory takings jurisprudence by announcing that “if regulation goes too far it will be recognized as a taking,” but he did not say how far is too far. Fifty-six years later, in Penn Central Transportation Co. v. New York City, the Supreme Court settled on a balancing test to determine when a regulation is a taking for which a property owner must be compensated under the Fifth Amendment. The Penn Central test remains the rule today, though it has been qualified by various per se rules, notably the total-taking rule of Lucas v. South Carolina Coastal Council.

But what is “total”? Because every regulation can be characterized as a total taking of some right, the Court has struggled to prevent the “denominator question” from expanding Lucas and undermining Penn Central. Last Term, in Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, the Court held that to trigger the Lucas rule a total deprivation of all economically viable use must be permanent; a temporary deprivation is only partial and must be considered under Penn Central. The Court has saved the Penn Central edifice, though it is unclear that this structure is worth preserving.

Keywords
  • regulatory takings,
  • property,
  • Tahoe-Sierra,
  • Lucas
Disciplines
Publication Date
November, 2002
Citation Information
The Supreme Court, 2001 Term—Leading Cases, 116 Harv. L. Rev. 200, 321 (2002).