The search for coherence in takings jurisprudence has resulted in a multitude of theories but no consensus. Each theory -- whether based on conceptions of common law property rights or constitutional conceptions of justice, or based on utility, natural law, or communitarian or republican conceptions of the good --offers significant insight into the vexing legal, political, and normative issues that judicial enforcement of the Takings Clause raises. But no single theory of property or of constitutional limits on state regulation and expropriation has proven capable either of satisfactorily rationalizing existing takings law or of persuading the courts or the theory's opponents that its approach is best. And as with their forbearers in the pantheon of Supreme Court takings decisions, the decisions from 2005 failed to confirm the supremacy of any one existing theory or approach.
The 2005 decisions do cohere -- only not in the way we might think, expect, or even prefer. They make plain that when faced with the difficult political and jurisprudential issues raised by the relationship between private property and the regulatory state, the Court's greatest concern is with itself -- that is, with the role of federal judicial review in a tri-partite, federalist system. The Court has abandoned the difficult, if not impossible, task of providing a clear normative justification for the Takings Clause in favor of preserving and furthering its vision of an institutional system of governance. It has preferred to direct its takings jurisprudence towards the question of who should decide, rather than towards the substantive issue of what should be decided. In short, the Court has chosen to adopt a "legal process" approach to takings -- a jurisprudential commitment that did not begin in the 2005 decisions, but that has only become truly clear after them.The
Mark Fenster, The Takings Clause, Version 2005: The Legal Process of Constitutional Property Rights, 9 U. Pa. J. Const. L. 667 (2007), available at http://scholarship.law.ufl.edu/facultypub/45