Although stressing the "ad hoc, factual" nature of regulatory takings analysis, the United States Supreme Court has, over time, elevated the prominence of two economic tests in its analysis. In this Article, the author criticizes the importance placed on the tests and argues that the validity of a regulation must be determined based on the legitimacy of the governmental objective and the relationship between that objective and the challenged regulation, and not on the economic impact of the regulation on the property owner. The author rejects the notion that exercises of the eminent domain power and valid exercises of the police power anchor separate ends of a single continuum. Rather, the author asserts that a valid exercise of the police power may deprive a property owner of all economic use of his or her property, and an exercise of the eminent domain power requiring compensation may leave a property owner with significant enjoyment of the rights of an owner. Accordingly, the Article urges a resurrection of police power theories in regulatory takings analysis and a refocusing on the nature of the governmental power being exercised (police or eminent domain) and the validity of that exercise.
Lynda J. Oswald,
Cornering the Quark: Investment-Backed Expectations and Economically Viable Uses in Takings Analysis,
70 Wash. L. Rev.
Available at: https://digitalcommons.law.uw.edu/wlr/vol70/iss1/3