Instead of a Doctrine: Penn Central as the Supreme Court's Retreat from the Rule of Law

Abstract

When the Supreme Court handed down its decision in Penn Central Transportation Co. v. City of New York, it had not decided a regulatory takings case in over half a century. Penn Central's tortured and opaque analysis did little to move takings jurisprudence beyond Justice Holmes' cryptic 1922 maxim, if regulation goes too far it will be recognized as a taking. The Court did little to elaborate on the meaning or weight of Penn Central's vague criteria - the nature of the government action, the economic impact of the regulation, or the owner's distinct investment-backed expectations - preferring instead to enunciate new bright line rules in Loretto v. Teleprompter Manhattan CATV Corp. and Lucas v. South Carolina Coastal Council. It even appeared to abandon Penn Central's terminology altogether in Agins v. City of Tiburon. But in the waning years of the Rehnquist Court, most of the newer formulations of takings doctrine were undermined, scaled back, or abandoned altogether in decisions like Tahoe-Sierra Preservation Council, v. Tahoe Regional Planning Agency and Lingle v. Chevron, USA, Inc. It now falls to the Roberts Court to go back three decades and begin fleshing out the meaning of Penn Central as the Court's polestar of regulatory takings law for the 21st century.