Publication Date

2004

Publication Title

Ecology Law Quarterly

Abstract

This article critiques the Court's attempt to cabin the Lucas "per se" takings rule by limiting it to real property. It argues that the distinction between real and personal property cannot be justified by history or the differing expectations of property owners. It then applies five theoretical frameworks (libertarian, personhood, utilitarian, public choice, and Thomistic-Aristotelian natural law) and finds that none of them supports the jurisprudential distinction between real and personal property. As a result, the article argues that "because the distinction between personal and real property is an unprincipled one, it cannot save the Court from the unpalatable implications of its Lucas holding for broader economic legislation." While acknowledging the rationale for the Court's attempt to create a bright line rule in the area of regulatory takings, Pehalver concludes that this is an area of law that is "unsuitable for such inflexible standards.

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