Horne and the Normalization of Takings Litigation: A Response to Professor Echeverria

摘要

The last three Takings Clause decisions in the U.S. Supreme Court have shared a common theme. In each of them, the Court has cut through the morass of arbitrary, clause-specific rules, complications, and obstacles to relief that have accrued over the past few decades. I call this process "normalization"-treating Takings Clause claims as normal constitutional claims, subject to the same procedural, jurisdictional, and remedial principles that apply to other constitutional rights. Twenty years ago, Chief Justice William H. Rehnquist observed that there was "no reason why the Takings Clause of the Fifth Amendment, as much a part of the Bill of Rights as the First Amendment or Fourth Amendment, should be relegated to the status of a poor relation ... ." In recent cases, the Court seems to be taking that observation to heart.