For the past forty years, the United States Supreme Court has embraced the doctrine of regulatory takings, despite being unable to provide any coherent and reliable guidance on when a regulation goes so far as to require compensation. But Justice Thomas's admission in Murr v. Wisconsin (2017) that there is no real historical basis for the Court's regulatory takings jurisprudence offers a chance to reconsider the doctrine anew. Looking back to Justice Holmes's prophetic statement in Pennsylvania Coal Co. v. Mahon, that a regulation can go too far and require an exercise of eminent domain to sustain it, I argue that the Court should embrace the common law of eminent domain to provide a rational and reliable set of parameters for evaluating the constitutionality of government action that stops short of physical appropriation. In order to reclaim eminent domain, however, the Court would need to reject Justice Scalia's elision of the harm-avoidance/benefit-conferring distinction of Lucas v. South Carolina Coastal Council and embrace the balancing rule of sic utere. It also needs to rethink its rejection of the public interest factor in Lingle v. Chevron U.S.A., Inc., for proper balancing requires a consideration of the public interest served by government action. The Court should embrace the balancing of harms and benefits and the offsetting of benefits from harms that routinely occur in eminent domain determinations. And finally, the Court should require that a cognizable property right be appropriated if compensation is to be paid. Thus, by realigning our constitutional property protections with the common law of eminent domain, the incoherence of the Court's current regulatory takings jurisprudence can be mostly eliminated. Although there will always be hard cases, relying on the centuries-old common law of eminent domain rather than the Court's failed experiment with regulatory takings can help provide a sensible and rational way to balance private property with the public welfare.
Danaya C. Wright, A Requiem for Regulatory Takings: Reclaiming Eminent Domain for Constitutional Property Claims, 49 Envtl. L. 307 (2019)