The Once and Future Penn Central Test

Abstract

Ten years ago, in Lucas v. South Carolina Coastal Council, the Supreme Court announced a new “categorical” test for regulatory takings, a step that logically implied that there must also be a “noncategorical” takings test (based, most presumed, on the Court's 1978 decision in Penn Central). Thus ensued a frantic effort among academics and takings practitioners to make sense of (or debunk) this two-tier analysis, an effort to which I contributed in the pages of this journal with an article entitled “Is the Penn Central Three Factor Test Ready for History's Dustbin?” (Vol. 52, No. 1).