The Supreme Court's expanded use of regulatory takings is making a highly controversial and confusing concept more difficult to apply and defend. The Court and commentators are invited to explore a different approach-- Progressive jurisprudence, as represented by the Court's enduring opinion in Village of Euclid v. Ambler Realty Co . This Commentary examines the reinvigoration of the Takings Clause and, in historical and ideological terms, discusses the Progressiveness of Euclid and of the regulatory scheme the Euclid Court approved. Professors Haar and Wolf identify and explore five inquiries concerning the character of regulations affecting the use, ownership, and value of private property. The answers to these questions remain relevant (and often outcome-determinative) in cases involving allegedly confiscatory regulations. In the discussion of each inquiry, the authors consider how the Court's current regulatory takings approach suffers by comparison. The authors note that it is becoming increasingly difficult for the current Justices to shape consistent majority opinions out of their diverse views regarding the nature and applicability of regulatory takings. The authors urge American jurists to take a second look at Euclid and the Euclidean inquiries as an alternative to regulatory takings law and its unfortunate legacy of unnecessary confusion and judicial overreaching.
Charles M. Haar & Michael Allan Wolf, Euclid Lives: The Survival of Progressive Jurisprudence, 115 Harv. L. Rev. 2158 (2002), available at http://scholarship.law.ufl.edu/facultypub/576