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ARTICLE · 04 JULY 2017

Does The Concept Of Regulatory Takings Comport With Original Intent?

Last Friday, the Supreme Court issued an important regulatory takings case, refining the test to be used to determine what is the appropriate unit of property to use to assess the impact of a regulation.

United StatesLitigation, Mediation & Arbitration

Last Friday, the Supreme Court issued an important regulatory takings case, refining the test to be used to determine what is the appropriate unit of property to use to assess the impact of a regulation. It's an interesting case and I think that the Court probably got it right. However, that's not what caught my eye about the case. To me, Justice Thomas's dissent is the most intriguing.

Justice Thomas, while joining the principal dissent, separately acknowledged that the Court's regulatory takings jurisprudence "has never purported to ground those precedents in the Constitution as it was originally understood." In other words, the original decision on regulatory takings, Pennsylvania Coal Co. v. Mahon, made the concept of a regulatory taking up out of whole cloth. Nice of Justice Thomas to concede that. Justice Thomas would like to see whether the concept:

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