The Shifting Burden of Proof in Exactions

Abstract

AbstractTogether Nollan and Dolan established a two–part test for determining whether an exaction resulted in violation of the Fifth Amendment's Takings Clause, applied to the states through the Due Process Clause of the Fourteenth Amendment, requiring the payment of just compensation. Notably, these tests assigned the burden of proof, typically on the shoulders of those challenging a government regulation, to local regulators who were now required to show an essential nexus and rough proportionality, as the ad hoc nature of the exaction process demanded an inquiry into the government's motives—a significant burden for a landowner.