Property Tests, Due Process Tests and Regulatory Takings Jurisprudence


The United States Supreme Court recently clarified in Lingle v. Chevron U.S.A., Inc. that its often-expressed "substantially advance" formulation sounds in due process, and thus should be rejected as an appropriate takings test. The Court also explained that due process provides an independent and legitimate basis for attacking government deprivations of private property. Paradoxically, Lingle also reaffirmed as the Court's principal takings test the ad hoc, multifactor formulation in Penn Central Transportation Co. v. City of New York.

The Article asserts that Penn Central itself is a due test. Building upon Lingle, as the Court did not, the Article outlines separate and independent takings and due property tests. The proffered due process test is based on the need for meaningful scrutiny. The suggested takings test applies property law concepts in determining whether government arrogated private property to itself, and thus must compensate. Most particularly, the Article advocates the "commercial unit" as a necessarily objective measure of what constitutes a relevant interest for takings analysis.