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Copyright (c) 2013 University of California, Hastings College of the Law
West-Northwest Journal of Environmental Law & Policy

ARTICLE: Evaluating Economic Impact in Regulatory Takings Cases

Summer, 2013

West Northwest Journal of Environmental Law & Policy

19 Hastings W.-N.W. J. Env. L. & Pol'y 373


Daniel L. Siegel*


I. Introduction
There are no inherently correct criteria for determining whether regulations restricting uses of property violate the Takings Clause. The regulatory takings concept is a judicial construct that has the potential to be expansively applied. Justice Scalia underscored its judicial origins by explaining in Lucas v. South Carolina Coastal Council that "prior to Justice Holmes's exposition in Pennsylvania Coal Co. v. Mahon, it was generally thought that the Takings Clause reached only a "direct appropriation' of property, or the functional equivalent of a "practical ouster of [the owner's possession.'" 1 And Justice Stevens warned about potential over-application of this judicial creation in his Dolan v. City of Tigard 2 dissent:

The so-called "regulatory takings" doctrine that the Holmes dictum [] kindled has an obvious kinship with the line of substantive due process cases that Lochner exemplified. Besides having similar ancestry, both doctrines are potentially open-ended sources of judicial power to invalidate state economic regulations that Members of this Court view as unwise or unfair. 3
Susceptibility for abuse exists where, in contrast to government's condemnation or physical appropriation of property, "a taking has occurred because a law or regulation imposes restrictions so severe that they are tantamount to a condemnation or appropriation, the predicate of a taking is not self-evident." 4

Some scholars use this lack of precision to advocate an aggressive interpretation of the Takings Clause. Most notably, Professor Richard Epstein argues "that the eminent domain clauses and parallel clauses in the Constitution render ...
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