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Unpublished Paper
ExpressO (2010)
  • David Crump
The Fifth Amendment to the Constitution provides that private property may not be taken without just compensation. But the Takings Clause does not provide much guidance to a court that is struggling to decide in a given case whether the facts before it amount to a taking. In Penn Central Transportation Company v. New York, the Supreme Court said that an ad hoc balancing test was to be the general approach to a regulatory takings case. The Court did not tell us how the factors were to be weighed, and in fact it left some of the balancing factors themselves without adequate description. Forty years later, although there has been a great deal of criticism of the Penn Central approach, the Court has done little to refine it, and no commentator has undertaken to combine a sound description of the balancing factors with a suggestion about how they are to be considered and weighed. Depending upon how one counts them, it appears that Penn Central uses six balancing factors, or perhaps seven. Some of the factors are expressly named, such as the economic impact of the regulation on the claimant, whether the regulation is for a direct governmental purpose, the degree to which it is comprehensive, and whether there is a reciprocity of advantage by which the claimant as well as others can benefit from the regulation. Whether comprehensiveness and reciprocity are distinct factors, or whether they are closely enough related to be called the same, is ambiguous, and hence the possibility of seven factors. Other factors, including the degree of physical invasion created by the regulation, the degree to which it prohibits obnoxious uses of the property, and whether the regulation serves a broad public purpose, are not explicitly stated or are poorly defined, although the court’s analysis unmistakably shows that they are among the weight factors. The first contribution of this article is to identify these factors and describe them. The next challenge is to analyze how the factors should be considered and weighed. This effort requires a return to first principles: to an examination of the purposes of the Takings Clause. The article identifies a deontological or individual-rights purpose: prevention of the sacrifice of one individual for the benefit of the many. It also identifies three related consequentialist or economic policies underlying the Clause: restraining the exuberance of regulators, causing government to harmonize competing public and private uses of property, and encouraging investment by instilling confidence in investors. The article gives reasons for inferring that all of these purposes are part of the original understanding as well as of the modern view of the Takings Clause. With this background, a number of conclusions emerge about the ways in which the factors should be considered and the weight each should be given in the balancing process. For example, the economic impact and comprehensiveness (or reciprocity) factors both serve the individual-rights and economic policies in important ways. The manner in which these factors should be considered, however, requires careful definition, which is undertaken in this article. The physical invasion factor is made largely obsolete by intervening decisions (even though the Court has never explicitly disclaimed it), but it might have some limited application in ways that the article describes. The governmental purpose and noxious use factors also seem unlikely to apply in many cases, but the article attempts to identify those few cases. Finally, there is one factor that should be afforded very little weight because it should not have been included in the first place. The presence of a broad public purpose underlying the regulation is just as likely to demonstrate the sacrifice of the few to the many as it is to indicate a proper government action, if not more so; and similarly, the broad-public-purpose factor seems unlikely to advance the economic policies underlying the Taking Clause. The article considers how this factor should be treated so as to make it fit rationally with the policies of the Fifth Amendment.
Publication Date
September 24, 2010
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