The Supreme Court's unanimous decision in Lingle v. Chevron U.S.A., Inc. was met with restrained but largely appreciative notice by commentators. Lingle declared that the Takings Clause affirmatively protects property owners by awarding them compensation for regulations that impose the functional equivalent of a condemnation of their property. The regulatory takings doctrine thus differs from the substantive due process doctrine, which instead reviews the validity of a regulation and offers as its remedy the invalidation of an offending government action. Clearing the underbrush that had grown in nearly a century of Supreme Court precedent, the Court appeared to have made the path forward clear.
But political and philosophical conflicts as well as doctrinal indeterminacy have always driven regulatory takings litigation and theory. Given the open-ended, indeterminate constitutional text on which the doctrine is based, which is silent as to the definition of "taken" and makes no mention of regulation, as well as the fraught terrains of property rights and land use and environmental regulation in whose terms opposing parties state their respective positions, it seems inevitable that any effort to resolve the issue and stabilize the doctrine will generate disputes. Any effort will also result in an entangled, complex doctrine, one unlikely to please those who long for clear analytical distinctions and bright-line rules.
Although the conventional trope in takings scholarship requires the analyst to lament such potential confusion and to offer a prescriptive solution, I want to suggest that the complex muddle of takings and its entanglement with other doctrines are neither bad nor avoidable things. I intend in this Article neither to condemn conceptual fuzziness nor to lament its inevitability, nor even to celebrate indeterminacy and imprecision. Case-by-case adjudication is inevitable in an area where bright lines are impossible and courts are forced to review an infinite variety of state regulatory actions. Analytical purity and abstract doctrinal coherence are likely impossible to achieve in difficult cases, as courts engage in the imprecise balancing they must perform when they consider the complex impacts of a regulation on property rights, as well as the complex political and policy decisions a government agency made in imposing that regulation. To invoke the jargon of software design, this messiness is neither a bug nor a feature in regulatory takings doctrine but part of its operating instructions, as those instructions have been shaped by the political and jurisprudential changes wrought by the New Deal and legal realism. The Penn Central test in a post-Lingle world, I argue, offers an explicitly realist solution to the multi-tiered field of land use and environmental regulation, a tool that grants courts discretion to make their way through the fact-intensive conflicts that hard cases present.
Mark Fenster, The Stubborn Incoherence of Regulatory Takings, 28 Stan. Envtl. L. J. 525 (2009), available at http://scholarship.law.ufl.edu/facultypub/64