Too Far: Imagining the Future of Regulatory Takings

Background

A century ago, Oliver Wendell Holmes speaking for the Supreme Court assured us that “[t]he general rule at least is that while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking.” In the ensuing one hundred years, courts have struggled to draw the line defining “too far.” Some still wonder whether such a line should even exist. As Justice Thomas recently said, “If there is no such thing as a regulatory taking, we should say so. And if there is, we should make clear when one occurs.” 

To date, many jurists and scholars have argued that the “too far” line is anything but clear. The regulatory takings doctrine is a hodgepodge of balancing and categorical tests alongside a scattered throng of exceptions, with little guidance on which tests or exceptions apply when, much less how to apply them in a principled and consistent manner. There are the categorical tests of Lucas (“total” takings) and Loretto (“physical” takings), and the amorphous balancing tests like the Penn Central ad hoc regime and the threshold “relevant parcel” test. Then there are vexing and unanswered questions about whether some restrictions on property are simply exempted from a takings analysis: when is a property restriction a “background principle” baked into the meaning of property itself as opposed to a restraint on a recognized property right? When, if ever, does a valid exercise of the police power operate outside of takings constraints? And, to top it all off, we still aren’t settled on how to define “property.”   

Possible Topics

1. What is the originalist case for a regulatory takings doctrine?
2. Do restrictions on residential eviction or tenant selection cause a physical taking?
3. When does administrative delay cause a taking?
4. When do regulatory takings claimants have a right to a jury trial on liability?
5. Should a Lucas takings analysis look to loss of value or loss of use?
6. What is “property” within the meaning of the Fifth Amendment Takings Clause?
7. How should post-enactment acquisition of property or the degree to which a property use is already highly regulated affect the expectations analysis under Penn Central?
8. How should courts address relevant parcel questions following Murr v. Wisconsin?
9. How should the exercise of the police power affect the takings analysis?
10. What approaches to regulatory takings will maximize economic efficiency?
11. How can broader philosophical notions of justice, fairness, or natural law inform the regulatory takings doctrine?

Research Proposal Submission Details

Please submit a brief proposal that describes your thesis and how your paper will contribute to the legal issues described above.

Proposals should be submitted by April 15, 2024 to Ethan Blevins at eblevins@pacificlegal.org. Early proposal submission is encouraged, as proposals will be reviewed on a rolling basis, and approvals will allow authors to begin work early. Submissions after April 15, 2024 may be accepted if space at the roundtable and budget permit.

Research Roundtable

Completed paper drafts are due early October 2024 before the date of the research roundtable but need not be in polished or publishable form. Authors will present their papers at the research roundtable that will be held on October 04, 2024. Each paper author will be expected to formally comment on others’ papers. We will cover the cost of hotel accommodation and reasonable travel expenses to the roundtable.