Waiving the Taking Clause: Conflicting Signals from the Supreme Court

Abstract

The Supreme Court's latest trilogy of taking cases leaves taking law as confused as ever. Not yet clear is whether the Court favors the ad hoc three-factor inquiry adopted in Penn Central Transportation Co. v. City of New York, ‘or the two-part test adopted in Keystone Bituminous Coal Ass'n v. De Benedictis.’ Additional problems arise from the Court's use of phrases, maxims, and principles whose place in taking doctrine is uncertain. The principle that a taking does not occur if there is an “average reciprocity of advantage” is one example.