Takings: What Does Matter? A Response to Professor Penalver

摘要

I agree with Professor Penalver's criticisms of modern American takings doctrine. The doctrine is incoherent and the cases conflict. The balancing test of Penn Central Transportation Co. v. New York City is not helpful—it is ad hoc and may be meaningless. It is also unhelpful to ask to what extent regulation destroys the economic value of property, and misleading to try to identify a particular property right as essential and therefore sacrosanct. Indeed, Professor Penalver's main point is correct. It does not make sense to distinguish takings of land from takings of personal property. My disagreement is that I see more hope than Professor Pefialver in one of the five theoretical approaches he discusses: the one he calls the Thomistic-Aristotelian natural law theory. This theory is not only the oldest of the five, but may be the lineal ancestor of the takings provision of the Fifth Amendment.