WHY IS THE MAGNITUDE OF A REGULATION RELEVANT TO DETERMINING WHETHER IT TAKES PROPERTY?

摘要

All four explanations are valid descriptively, in that the Supreme Court has expressed all four principles explaining or justifying regulatory takings analysis and decisions. Each of them may be a persuasive explanation in some situations. Certainly the advocate should consider all four explanations in making arguments about the magnitude of regulatory burdens. Maybe that contributes to the perceived messiness or confusion of regulatory takings law. Courts consider several different principles rather than just one principle in evaluating the relevant factual considerations. If so, regulatory takings law may be clearer by being more explicit about the influence of these perspectives. Courts can and should address how each of these perspectives may influence the judgment about whether the regulation goes too far and should result in compensation. That would help clarify the court's reasoning and give more guidance to future litigants.