Takings As Compulsory Purchase of Commercial Units

Abstract

This article examines recent Supreme Court decisions regarding private property and eminent domain vis-a-vis growing demands for government controls over land use, especially to ameliorate climate change and to reduce regional economic disparities. It notes that tension between the Court’s amorphous regulatory takings jurisprudence and assertive regulation will increase, a trend likely to be heightened after Knick v Township of Scott. Its contribution is the assertions that the current judicial regulatory takings apparatus be replaced with the doctrine that, if owners can demonstrate that the property arrogated by government consists of a “commercial unit,” then the matter should be deemed a compulsory purchase, and just compensation paid. Of course, borderline and unusual circumstances dictate some continued reliance on substantive due process, which already plays a crucial, if unacknowledged, role in contemporary regulatory takings doctrine.