Check this out, a new SSRN posting by lawprof Donald Kochan (George Mason/Scalia Law).

If this one is not a direct sequel to his earlier work on re-branding the “takings clause” (a piece we think is excellent and is part of the materials we teach in our Eminent Domain course at William and Mary Law), it does at least seem like a spiritual successor.

Here, Professor Kochan suggests that we’re being unclear when we use the term “regulatory takings” to describe those instances where an exercise of some governmental power other than eminent domain results in what feels like an eminent domain taking from the property owner’s viewpoint.

Instead, he argues, we should focus on the burdens the regulations place on an owner’s use (what the common law described as a servitude). To us, that seems very consistent with the Supreme Court’s approach, and proposals from other commentators. And it does focus the inquiry on the right question, namely what effect has a regulation put on an owner’s property rights. As that suggests, this should be a property-centric inquiry, and not on such unknowables such as the “character of the government action,” or whether an owner has “distinct investment-backed expectations.”

Here’s the Abstract:

This essay challenges the use of the term “regulatory takings” in our takings jurisprudence and scholarly discussion. The words we choose when developing doctrine matter. They can, even subconsciously, affect—by reducing, enlarging, distorting, limiting, or accurately shaping—the perceived and functional quality and character of the things they describe.

The better way to frame the inquiry underlying what is often called regulatory takings law should be to determine not whether there is a “regulatory taking” – some special kind of taking – but instead whether there is a regulation that amounts to a taking. Segmenting the judicial treatment of regulatory effects into a specialized analysis that takes it farther and farther away from an enterprise focused on equivalency between the private law of voluntary servitudes and the public law of what we should be calling involuntary regulatory servitudes. Regulations that restrict some but not all sticks in the property rights bundle should be characterized as the involuntary equivalent of the voluntary instrument, mechanism, or transfer that would have been necessary to achieve a parallel result. The essay proposes an alternative test for determining whether a regulation should be deemed a taking based on a comparison between the effect on the bundle from the regulation and determining whether the same effect in the private marketplace would have required a consensual, mutually beneficial exchange with appropriate compensation. This would better serve the meaning and purposes of the so-called Takings Clause.

The essay also documents the usage history of the regulatory takings label. To be sure, “regulatory takings” was not a dominate part of the takings lexicon before 1981. The first law review publication available in Westlaw to use the term “regulatory takings” is from 1965. The first court opinion to use the term came in a footnote in 1977. Briefing in advance of the 1980 U.S. Supreme Court decision in Agins v. Tiburon involved significant invocations of “regulatory takings” language across nearly a dozen briefs. But, the U.S. Supreme Court in its Agins opinion never uses the phrase “regulatory takings.” The first major court opinion to use “regulatory takings” language is the dissenting opinion by Justice William Brennan—joined by Justices Stewart, Marshall, and Powell—in the 1981 case of San Diego Gas & Elec. Co. v. City of San Diego. And, the Brennan dissent may have entrenched the term in the takings lexicon and is likely the impetus for widespread adoption of the term after 1981.

A must-read for all you takings…uh, dirt law…mavens.
Continue Reading New Article (Donald Kochan): “Involuntary Regulatory Servitudes: Correcting for ‘Regulatory Takings’ Terminological Problems”