5.29.2005
Judicial Takings and Givings (WashingtonPost.com)
EDITORIAL
Saturday, May 28, 2005; Page A24
THE SUPREME COURT'S decision this week in the case of Lingle v. Chevron didn't make big news. No surprise: The unanimous decision dealt with a technical-sounding question of property rights. But Lingle is important, because in it the court unambiguously repudiated a dangerous doctrine it had articulated in 1980, a doctrine with horrid implications for environmental and other regulatory enforcement.
The Takings Clause of the Fifth Amendment bans governmental seizure of private property without just compensation. Traditionally, this stricture was understood to ban only the physical expropriation of land or other things of value. But starting in the 1920s, the court expanded the concept to include certain regulatory actions that so devalue a person's property as to render it worthless. The idea of a "regulatory takings" makes sense at the extremes, but limiting it has proven tricky. Government actions often diminish property values, after all, so a broad regulatory takings principle could have the effect of forcing governments to pay people to get them to comply with the law. Precisely for this reason, the doctrine has become a favorite of libertarian legal theorists interested in using the courts to restrain the regulatory state.
(More ... Judicial Takings and Givings) ¶ 12:43
Saturday, May 28, 2005; Page A24
THE SUPREME COURT'S decision this week in the case of Lingle v. Chevron didn't make big news. No surprise: The unanimous decision dealt with a technical-sounding question of property rights. But Lingle is important, because in it the court unambiguously repudiated a dangerous doctrine it had articulated in 1980, a doctrine with horrid implications for environmental and other regulatory enforcement.
The Takings Clause of the Fifth Amendment bans governmental seizure of private property without just compensation. Traditionally, this stricture was understood to ban only the physical expropriation of land or other things of value. But starting in the 1920s, the court expanded the concept to include certain regulatory actions that so devalue a person's property as to render it worthless. The idea of a "regulatory takings" makes sense at the extremes, but limiting it has proven tricky. Government actions often diminish property values, after all, so a broad regulatory takings principle could have the effect of forcing governments to pay people to get them to comply with the law. Precisely for this reason, the doctrine has become a favorite of libertarian legal theorists interested in using the courts to restrain the regulatory state.
(More ... Judicial Takings and Givings) ¶ 12:43
