Article
Regulatory "Takings": The Remarkable Resurrection of Economic Substantive Due Process Analysis in Constitutional Law
Environmental Law Reporter
(1987)
Abstract
The theory that a land use regulation may "go too far" and deny to the landowner the use of his or her property in derogation of the Takings Clause of the Constitution has long been an inexact, even confused, doctrine. In the term just ended, the Supreme Court was presented with three cases in which a land use regulation was alleged to have exceeded the police power and "gone too far," but in deciding the individual cases the Court did not successfully clarify the underlying theory. In this Article, Professor McGinley traces the development of the regulatory takings doctrine, and argues that the present-day confusion stems from a fundamental misunderstanding of Justice Holmes' teachings in Pennsylvania Coal Co. v. Mahon. The result of this confusion has been a resurrection of the long-discredited "economic substantive due process" analysis in this area. Professor McGinley argues that Justice Holmes was in fact advancing a consistent and cogent constitutional formula to determine whether a land use regulation had indeed "gone too far," and concludes that the freewheeling Lochner-style takings analysis currently employed should be scrapped as a threat to fundamental constitutional values.
Keywords
- economic substantive due process,
- due process,
- COnstitutional Law,
- Land use Regulation
Disciplines
Publication Date
September, 1987
Citation Information
Patrick C. McGinley. "Regulatory "Takings": The Remarkable Resurrection of Economic Substantive Due Process Analysis in Constitutional Law" Environmental Law Reporter (1987) Available at: http://works.bepress.com/patrick-mcginley/29/