The ghost of lochner: Modern takings doctrine and its impact on economic legislation

Boston University Law Review

Volumn 76, Issue 4, 1996, Pages 605-666

  McUsic, Molly S ^a  

^a NONE

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EID: 0030344598     PISSN: 00068047     EISSN: None     Source Type: Journal    
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References (367)

1. In Justice Stevens's words, "[P]roperty owners have surely found a new friend" in the Court. Dolan v. City of Tigard, 114 S. Ct. 2309, 2326 (1994) (Stevens, J., dissenting). The "Takings Clause" refers to U.S. CONST. amend. V, which provides, "[N]or shall private property be taken for public use, without just compensation."
2. Thomas C. Grey, The Malthusian Constitution, 41 U. MIAMI L. REV. 21, 21 (1986).
3. See, e.g., BERNARD SCHWARTZ, THE NEW RIGHT AND THE CONSTITUTION 5 (1990); Bruce W. Burton, Regulatory Takings and the Shape of Things to Come: Harbingers of a Takings Clause Reconstellation. 72 OR. L. REV. 603 (1993); Richard Epstein, Rent Control and the Theory of Efficient Regulation, 54 BROOK. L. REV. 741, 755 (1988); William A. Falik & Anna C. Shimko, The Takings Nexus: The Supreme Court Forges a New Direction in Land-Use Jurisprudence, 23 REAL PROP. PROB. & TR. J. 1, 43-45 (1988); Craig A. Peterson, Recent Development in "Takings" Jurisprudence: Land Use Regulatory "Takings" Revisited: The New Supreme Court Approaches, 39 HASTINGS L.J. 335 (1988); Margaret Jane Radin, The Liberal Conception of Property: Cross Currents in the Jurisprudence of Takings, 88 COLUM. L. REV. 1667, 1671-84 (1988);
4. See, e.g., BERNARD SCHWARTZ, THE NEW RIGHT AND THE CONSTITUTION 5 (1990); Bruce W. Burton, Regulatory Takings and the Shape of Things to Come: Harbingers of a Takings Clause Reconstellation. 72 OR. L. REV. 603 (1993); Richard Epstein, Rent Control and the Theory of Efficient Regulation, 54 BROOK. L. REV. 741, 755 (1988); William A. Falik & Anna C. Shimko, The Takings Nexus: The Supreme Court Forges a New Direction in Land-Use Jurisprudence, 23 REAL PROP. PROB. & TR. J. 1, 43-45 (1988); Craig A. Peterson, Recent Development in "Takings" Jurisprudence: Land Use Regulatory "Takings" Revisited: The New Supreme Court Approaches, 39 HASTINGS L.J. 335 (1988); Margaret Jane Radin, The Liberal Conception of Property: Cross Currents in the Jurisprudence of Takings, 88 COLUM. L. REV. 1667, 1671-84 (1988);
5. See, e.g., BERNARD SCHWARTZ, THE NEW RIGHT AND THE CONSTITUTION 5 (1990); Bruce W. Burton, Regulatory Takings and the Shape of Things to Come: Harbingers of a Takings Clause Reconstellation. 72 OR. L. REV. 603 (1993); Richard Epstein, Rent Control and the Theory of Efficient Regulation, 54 BROOK. L. REV. 741, 755 (1988); William A. Falik & Anna C. Shimko, The Takings Nexus: The Supreme Court Forges a New Direction in Land-Use Jurisprudence, 23 REAL PROP. PROB. & TR. J. 1, 43-45 (1988); Craig A. Peterson, Recent Development in "Takings" Jurisprudence: Land Use Regulatory "Takings" Revisited: The New Supreme Court Approaches, 39 HASTINGS L.J. 335 (1988); Margaret Jane Radin, The Liberal Conception of Property: Cross Currents in the Jurisprudence of Takings, 88 COLUM. L. REV. 1667, 1671-84 (1988);
6. See, e.g., BERNARD SCHWARTZ, THE NEW RIGHT AND THE CONSTITUTION 5 (1990); Bruce W. Burton, Regulatory Takings and the Shape of Things to Come: Harbingers of a Takings Clause Reconstellation. 72 OR. L. REV. 603 (1993); Richard Epstein, Rent Control and the Theory of Efficient Regulation, 54 BROOK. L. REV. 741, 755 (1988); William A. Falik & Anna C. Shimko, The Takings Nexus: The Supreme Court Forges a New Direction in Land-Use Jurisprudence, 23 REAL PROP. PROB. & TR. J. 1, 43-45 (1988); Craig A. Peterson, Recent Development in "Takings" Jurisprudence: Land Use Regulatory "Takings" Revisited: The New Supreme Court Approaches, 39 HASTINGS L.J. 335 (1988); Margaret Jane Radin, The Liberal Conception of Property: Cross Currents in the Jurisprudence of Takings, 88 COLUM. L. REV. 1667, 1671-84 (1988);
7. See, e.g., BERNARD SCHWARTZ, THE NEW RIGHT AND THE CONSTITUTION 5 (1990); Bruce W. Burton, Regulatory Takings and the Shape of Things to Come: Harbingers of a Takings Clause Reconstellation. 72 OR. L. REV. 603 (1993); Richard Epstein, Rent Control and the Theory of Efficient Regulation, 54 BROOK. L. REV. 741, 755 (1988); William A. Falik & Anna C. Shimko, The Takings Nexus: The Supreme Court Forges a New Direction in Land-Use Jurisprudence, 23 REAL PROP. PROB. & TR. J. 1, 43-45 (1988); Craig A. Peterson, Recent Development in "Takings" Jurisprudence: Land Use Regulatory "Takings" Revisited: The New Supreme Court Approaches, 39 HASTINGS L.J. 335 (1988); Margaret Jane Radin, The Liberal Conception of Property: Cross Currents in the Jurisprudence of Takings, 88 COLUM. L. REV. 1667, 1671-84 (1988);
8. See, e.g., BERNARD SCHWARTZ, THE NEW RIGHT AND THE CONSTITUTION 5 (1990); Bruce W. Burton, Regulatory Takings and the Shape of Things to Come: Harbingers of a Takings Clause Reconstellation. 72 OR. L. REV. 603 (1993); Richard Epstein, Rent Control and the Theory of Efficient Regulation, 54 BROOK. L. REV. 741, 755 (1988); William A. Falik & Anna C. Shimko, The Takings Nexus: The Supreme Court Forges a New Direction in Land-Use Jurisprudence, 23 REAL PROP. PROB. & TR. J. 1, 43-45 (1988); Craig A. Peterson, Recent Development in "Takings" Jurisprudence: Land Use Regulatory "Takings" Revisited: The New Supreme Court Approaches, 39 HASTINGS L.J. 335 (1988); Margaret Jane Radin, The Liberal Conception of Property: Cross Currents in the Jurisprudence of Takings, 88 COLUM. L. REV. 1667, 1671-84 (1988);
9. Terry Rice, What Property Interests Merit Takings Protection?, LAND USE L. & ZONING DIG., Feb. 1991, at 3;
10. Marcia Coyle, Property Revival: Economic Rights Gurus Look to High Court, NAT'L L.J., Jan. 27, 1992, at 1;
11. David Helvarg, Property Rights Movement: Legal Assault on the Environment, NATION, Jan. 30, 1995, at 126;
12. Steven E. Landsburg, Don't Get Taken, FORBES, Sept. 12, 1994, at 102;
13. Top Court Deals Blow to Limits on Land Use, CHICAGO SUN-TIMES, June 6, 1987, at 5.
14. See, e.g., David L. Callies, Property Rights: Are There Any Left?, in REGULATORY TAKING: THE LIMITS OF LAND USE CONTROLS 247 (G. Richard Hill ed., 1993); Richard E. Levy, Escaping Lochner's Shadow: Toward a Coherent Jurisprudence of Economic Rights, 73 N.C. L. REV. 329, 331, 339-41 (1995); Glenn P. Sugameli, Takings Issues in Light of Lucas v. South Carolina Coastal Council: A Decision Full of Sound and Fury and Signifying Nothing, 12 VA. ENVTL. L. J. 439, 441, 456 (1993); Daniel Farber, "Taking" Liberties: Conservative Judicial Activism, NEW REPUBLIC, June 27, 1988, at 19; see also Frank Michelman, Takings, 1987, 88 COLUM. L. REV. 1600, 1625 (1988) ("I see the recent outcroppings of formality in the Supreme Court's takings jurisprudence not as harbingers of a possible second coming of the liberal conception of American constitutional law, but symptoms of the historical impossibility of consummating such an event.").
15. See, e.g., David L. Callies, Property Rights: Are There Any Left?, in REGULATORY TAKING: THE LIMITS OF LAND USE CONTROLS 247 (G. Richard Hill ed., 1993); Richard E. Levy, Escaping Lochner's Shadow: Toward a Coherent Jurisprudence of Economic Rights, 73 N.C. L. REV. 329, 331, 339-41 (1995); Glenn P. Sugameli, Takings Issues in Light of Lucas v. South Carolina Coastal Council: A Decision Full of Sound and Fury and Signifying Nothing, 12 VA. ENVTL. L. J. 439, 441, 456 (1993); Daniel Farber, "Taking" Liberties: Conservative Judicial Activism, NEW REPUBLIC, June 27, 1988, at 19; see also Frank Michelman, Takings, 1987, 88 COLUM. L. REV. 1600, 1625 (1988) ("I see the recent outcroppings of formality in the Supreme Court's takings jurisprudence not as harbingers of a possible second coming of the liberal conception of American constitutional law, but symptoms of the historical impossibility of consummating such an event.").
16. See, e.g., David L. Callies, Property Rights: Are There Any Left?, in REGULATORY TAKING: THE LIMITS OF LAND USE CONTROLS 247 (G. Richard Hill ed., 1993); Richard E. Levy, Escaping Lochner's Shadow: Toward a Coherent Jurisprudence of Economic Rights, 73 N.C. L. REV. 329, 331, 339-41 (1995); Glenn P. Sugameli, Takings Issues in Light of Lucas v. South Carolina Coastal Council: A Decision Full of Sound and Fury and Signifying Nothing, 12 VA. ENVTL. L. J. 439, 441, 456 (1993); Daniel Farber, "Taking" Liberties: Conservative Judicial Activism, NEW REPUBLIC, June 27, 1988, at 19; see also Frank Michelman, Takings, 1987, 88 COLUM. L. REV. 1600, 1625 (1988) ("I see the recent outcroppings of formality in the Supreme Court's takings jurisprudence not as harbingers of a possible second coming of the liberal conception of American constitutional law, but symptoms of the historical impossibility of consummating such an event.").
17. See, e.g., David L. Callies, Property Rights: Are There Any Left?, in REGULATORY TAKING: THE LIMITS OF LAND USE CONTROLS 247 (G. Richard Hill ed., 1993); Richard E. Levy, Escaping Lochner's Shadow: Toward a Coherent Jurisprudence of Economic Rights, 73 N.C. L. REV. 329, 331, 339-41 (1995); Glenn P. Sugameli, Takings Issues in Light of Lucas v. South Carolina Coastal Council: A Decision Full of Sound and Fury and Signifying Nothing, 12 VA. ENVTL. L. J. 439, 441, 456 (1993); Daniel Farber, "Taking" Liberties: Conservative Judicial Activism, NEW REPUBLIC, June 27, 1988, at 19; see also Frank Michelman, Takings, 1987, 88 COLUM. L. REV. 1600, 1625 (1988) ("I see the recent outcroppings of formality in the Supreme Court's takings jurisprudence not as harbingers of a possible second coming of the liberal conception of American constitutional law, but symptoms of the historical impossibility of consummating such an event.").
18. See, e.g., David L. Callies, Property Rights: Are There Any Left?, in REGULATORY TAKING: THE LIMITS OF LAND USE CONTROLS 247 (G. Richard Hill ed., 1993); Richard E. Levy, Escaping Lochner's Shadow: Toward a Coherent Jurisprudence of Economic Rights, 73 N.C. L. REV. 329, 331, 339-41 (1995); Glenn P. Sugameli, Takings Issues in Light of Lucas v. South Carolina Coastal Council: A Decision Full of Sound and Fury and Signifying Nothing, 12 VA. ENVTL. L. J. 439, 441, 456 (1993); Daniel Farber, "Taking" Liberties: Conservative Judicial Activism, NEW REPUBLIC, June 27, 1988, at 19; see also Frank Michelman, Takings, 1987, 88 COLUM. L. REV. 1600, 1625 (1988) ("I see the recent outcroppings of formality in the Supreme Court's takings jurisprudence not as harbingers of a possible second coming of the liberal conception of American constitutional law, but symptoms of the historical impossibility of consummating such an event.").
19. Lochner v. New York, 198 U.S. 45 (1905).
20. ARCHIBALD COX, THE COURT AND THE CONSTITUTION 131 (1987).
21. See, e.g., Nathaniel S. Lawrence, Means, Motives and Takings: The Nexus Test of Nollan v. California Coastal Commission, 12 HARV. ENVTL. L. REV. 231, 254 (1988); Richard G. Wilkins, The Takings Clause: A Modern Plot for an Old Constitutional Tale, 64 NOTRE DAME L. REV. 1, 3, 10 (1989); J. Freitag, Note, Takings 1992: Scalia's Jurisprudence and a Fifth Amendment Doctrine to Avoid Lochner Redivivus, 28 VAL. U. L. REV. 743, 744 (1994); see also Note, The Constitutionality of Rent Control Restrictions on Property Owners' Dominion Interests, 100 HARV. L. REV. 1067, 1069, 1079-80 (1987) (arguing that courts have used the Takings Clause to revive protection of property rights reminiscent of the Lochner era).
22. See, e.g., Nathaniel S. Lawrence, Means, Motives and Takings: The Nexus Test of Nollan v. California Coastal Commission, 12 HARV. ENVTL. L. REV. 231, 254 (1988); Richard G. Wilkins, The Takings Clause: A Modern Plot for an Old Constitutional Tale, 64 NOTRE DAME L. REV. 1, 3, 10 (1989); J. Freitag, Note, Takings 1992: Scalia's Jurisprudence and a Fifth Amendment Doctrine to Avoid Lochner Redivivus, 28 VAL. U. L. REV. 743, 744 (1994); see also Note, The Constitutionality of Rent Control Restrictions on Property Owners' Dominion Interests, 100 HARV. L. REV. 1067, 1069, 1079-80 (1987) (arguing that courts have used the Takings Clause to revive protection of property rights reminiscent of the Lochner era).
23. See, e.g., Nathaniel S. Lawrence, Means, Motives and Takings: The Nexus Test of Nollan v. California Coastal Commission, 12 HARV. ENVTL. L. REV. 231, 254 (1988); Richard G. Wilkins, The Takings Clause: A Modern Plot for an Old Constitutional Tale, 64 NOTRE DAME L. REV. 1, 3, 10 (1989); J. Freitag, Note, Takings 1992: Scalia's Jurisprudence and a Fifth Amendment Doctrine to Avoid Lochner Redivivus, 28 VAL. U. L. REV. 743, 744 (1994); see also Note, The Constitutionality of Rent Control Restrictions on Property Owners' Dominion Interests, 100 HARV. L. REV. 1067, 1069, 1079-80 (1987) (arguing that courts have used the Takings Clause to revive protection of property rights reminiscent of the Lochner era).
24. See, e.g., Nathaniel S. Lawrence, Means, Motives and Takings: The Nexus Test of Nollan v. California Coastal Commission, 12 HARV. ENVTL. L. REV. 231, 254 (1988); Richard G. Wilkins, The Takings Clause: A Modern Plot for an Old Constitutional Tale, 64 NOTRE DAME L. REV. 1, 3, 10 (1989); J. Freitag, Note, Takings 1992: Scalia's Jurisprudence and a Fifth Amendment Doctrine to Avoid Lochner Redivivus, 28 VAL. U. L. REV. 743, 744 (1994); see also Note, The Constitutionality of Rent Control Restrictions on Property Owners' Dominion Interests, 100 HARV. L. REV. 1067, 1069, 1079-80 (1987) (arguing that courts have used the Takings Clause to revive protection of property rights reminiscent of the Lochner era).
25. See, e.g., Douglas W. Kmiec, The Original Understanding of the Taking Clause Is Neither Weak Nor Obtuse, 88 COLUM. L. REV. 1630, 1651 (1988); Timothy P. Lynch, Comment, Let's Make a Deal! The Relationship Between Building Permit Conditions and Takings in Dolan v. City of Tigard, 6 FORDHAM ENVTL. L. J. 843, 856 (1995); Note, The Principle of Equality in Takings Clause Jurisprudence, 109 HARV. L. REV. 1030, 1030 (1996); Glen E. Summers, Comment, Private Property Without Lochner: Toward a Takings Jurisprudence Uncorrupted by Substantive Due Process, 142 U. PA. L. REV. 837, 839-40 (1993). Others have more boldly countered that Lochner was not a mistake, and that the courts should revive the era's jurisprudence through the Takings Clause, and whatever other constitutional provisions are appropriate. See, e.g., RICHARD A. EPSTEIN, TAKINGS: PRIVATE PROPERTY AND THE POWER OF EMINENT DOMAIN (1985); BERNARD H. SIEGAN, ECONOMIC LIBERTIES AND THE CONSTITUTION 318-31 (1980). Others have claimed that revival of economic rights can occur under the Due Process Clause without a return to the sins of Lochner. See, e.g., Levy, supra note 4, at 332 (arguing that "the problems plaguing the court in this area can and should be resolved by emerging from Lochner's shadow and integrating economic interests into a broader jurisprudence of constitutional rights").
26. See, e.g., Douglas W. Kmiec, The Original Understanding of the Taking Clause Is Neither Weak Nor Obtuse, 88 COLUM. L. REV. 1630, 1651 (1988); Timothy P. Lynch, Comment, Let's Make a Deal! The Relationship Between Building Permit Conditions and Takings in Dolan v. City of Tigard, 6 FORDHAM ENVTL. L. J. 843, 856 (1995); Note, The Principle of Equality in Takings Clause Jurisprudence, 109 HARV. L. REV. 1030, 1030 (1996); Glen E. Summers, Comment, Private Property Without Lochner: Toward a Takings Jurisprudence Uncorrupted by Substantive Due Process, 142 U. PA. L. REV. 837, 839-40 (1993). Others have more boldly countered that Lochner was not a mistake, and that the courts should revive the era's jurisprudence through the Takings Clause, and whatever other constitutional provisions are appropriate. See, e.g., RICHARD A. EPSTEIN, TAKINGS: PRIVATE PROPERTY AND THE POWER OF EMINENT DOMAIN (1985); BERNARD H. SIEGAN, ECONOMIC LIBERTIES AND THE CONSTITUTION 318-31 (1980). Others have claimed that revival of economic rights can occur under the Due Process Clause without a return to the sins of Lochner. See, e.g., Levy, supra note 4, at 332 (arguing that "the problems plaguing the court in this area can and should be resolved by emerging from Lochner's shadow and integrating economic interests into a broader jurisprudence of constitutional rights").
27. See, e.g., Douglas W. Kmiec, The Original Understanding of the Taking Clause Is Neither Weak Nor Obtuse, 88 COLUM. L. REV. 1630, 1651 (1988); Timothy P. Lynch, Comment, Let's Make a Deal! The Relationship Between Building Permit Conditions and Takings in Dolan v. City of Tigard, 6 FORDHAM ENVTL. L. J. 843, 856 (1995); Note, The Principle of Equality in Takings Clause Jurisprudence, 109 HARV. L. REV. 1030, 1030 (1996); Glen E. Summers, Comment, Private Property Without Lochner: Toward a Takings Jurisprudence Uncorrupted by Substantive Due Process, 142 U. PA. L. REV. 837, 839-40 (1993). Others have more boldly countered that Lochner was not a mistake, and that the courts should revive the era's jurisprudence through the Takings Clause, and whatever other constitutional provisions are appropriate. See, e.g., RICHARD A. EPSTEIN, TAKINGS: PRIVATE PROPERTY AND THE POWER OF EMINENT DOMAIN (1985); BERNARD H. SIEGAN, ECONOMIC LIBERTIES AND THE CONSTITUTION 318-31 (1980). Others have claimed that revival of economic rights can occur under the Due Process Clause without a return to the sins of Lochner. See, e.g., Levy, supra note 4, at 332 (arguing that "the problems plaguing the court in this area can and should be resolved by emerging from Lochner's shadow and integrating economic interests into a broader jurisprudence of constitutional rights").
28. See, e.g., Douglas W. Kmiec, The Original Understanding of the Taking Clause Is Neither Weak Nor Obtuse, 88 COLUM. L. REV. 1630, 1651 (1988); Timothy P. Lynch, Comment, Let's Make a Deal! The Relationship Between Building Permit Conditions and Takings in Dolan v. City of Tigard, 6 FORDHAM ENVTL. L. J. 843, 856 (1995); Note, The Principle of Equality in Takings Clause Jurisprudence, 109 HARV. L. REV. 1030, 1030 (1996); Glen E. Summers, Comment, Private Property Without Lochner: Toward a Takings Jurisprudence Uncorrupted by Substantive Due Process, 142 U. PA. L. REV. 837, 839-40 (1993). Others have more boldly countered that Lochner was not a mistake, and that the courts should revive the era's jurisprudence through the Takings Clause, and whatever other constitutional provisions are appropriate. See, e.g., RICHARD A. EPSTEIN, TAKINGS: PRIVATE PROPERTY AND THE POWER OF EMINENT DOMAIN (1985); BERNARD H. SIEGAN, ECONOMIC LIBERTIES AND THE CONSTITUTION 318-31 (1980). Others have claimed that revival of economic rights can occur under the Due Process Clause without a return to the sins of Lochner. See, e.g., Levy, supra note 4, at 332 (arguing that "the problems plaguing the court in this area can and should be resolved by emerging from Lochner's shadow and integrating economic interests into a broader jurisprudence of constitutional rights").
29. See, e.g., Douglas W. Kmiec, The Original Understanding of the Taking Clause Is Neither Weak Nor Obtuse, 88 COLUM. L. REV. 1630, 1651 (1988); Timothy P. Lynch, Comment, Let's Make a Deal! The Relationship Between Building Permit Conditions and Takings in Dolan v. City of Tigard, 6 FORDHAM ENVTL. L. J. 843, 856 (1995); Note, The Principle of Equality in Takings Clause Jurisprudence, 109 HARV. L. REV. 1030, 1030 (1996); Glen E. Summers, Comment, Private Property Without Lochner: Toward a Takings Jurisprudence Uncorrupted by Substantive Due Process, 142 U. PA. L. REV. 837, 839-40 (1993). Others have more boldly countered that Lochner was not a mistake, and that the courts should revive the era's jurisprudence through the Takings Clause, and whatever other constitutional provisions are appropriate. See, e.g., RICHARD A. EPSTEIN, TAKINGS: PRIVATE PROPERTY AND THE POWER OF EMINENT DOMAIN (1985); BERNARD H. SIEGAN, ECONOMIC LIBERTIES AND THE CONSTITUTION 318-31 (1980). Others have claimed that revival of economic rights can occur under the Due Process Clause without a return to the sins of Lochner. See, e.g., Levy, supra note 4, at 332 (arguing that "the problems plaguing the court in this area can and should be resolved by emerging from Lochner's shadow and integrating economic interests into a broader jurisprudence of constitutional rights").
30. See, e.g., Douglas W. Kmiec, The Original Understanding of the Taking Clause Is Neither Weak Nor Obtuse, 88 COLUM. L. REV. 1630, 1651 (1988); Timothy P. Lynch, Comment, Let's Make a Deal! The Relationship Between Building Permit Conditions and Takings in Dolan v. City of Tigard, 6 FORDHAM ENVTL. L. J. 843, 856 (1995); Note, The Principle of Equality in Takings Clause Jurisprudence, 109 HARV. L. REV. 1030, 1030 (1996); Glen E. Summers, Comment, Private Property Without Lochner: Toward a Takings Jurisprudence Uncorrupted by Substantive Due Process, 142 U. PA. L. REV. 837, 839-40 (1993). Others have more boldly countered that Lochner was not a mistake, and that the courts should revive the era's jurisprudence through the Takings Clause, and whatever other constitutional provisions are appropriate. See, e.g., RICHARD A. EPSTEIN, TAKINGS: PRIVATE PROPERTY AND THE POWER OF EMINENT DOMAIN (1985); BERNARD H. SIEGAN, ECONOMIC LIBERTIES AND THE CONSTITUTION 318-31 (1980). Others have claimed that revival of economic rights can occur under the Due Process Clause without a return to the sins of Lochner. See, e.g., Levy, supra note 4, at 332 (arguing that "the problems plaguing the court in this area can and should be resolved by emerging from Lochner's shadow and integrating economic interests into a broader jurisprudence of constitutional rights").
31. See Dolan v. City of Tigard, 114 S. Ct. 2309, 2326-27, 2329 (1994) (Stevens, J., dissenting) (alleging that the majority has reasserted the reasoning of Lochner); Nollan v. California Coastal Comm'n, 483 U.S. 825, 842 (1987) (Brennan, J. dissenting) (decrying the Court's use of a standard that has been "discredited for the better part of a century"); see also Duncan Kennedy, Towards an Historical Understanding of Legal Consciousness: The Case of Classical Legal Thought in America, 1850-1940, 3 RES. L. & SOC. 10 (1980) ("Modern commentators discussing controversial cases habitually club each other with the charge of 'Lochnerism.'"); Glynn S. Lunney Jr., A Critical Reexamination of Takings Jurisprudence, 90 MICH. L. REV. 1892, 1896 (1992) ("[T]he Court's approach is either to ignore [precedent] or to use name-calling - Lochnerism!"); Randall T. Perdue, The Countermajoritarian 'Ideal': The Role of Judicial Review Under Regulatory Takings Analysis, 2 GEO. MASON L. REV. 333, 339 n.34 (1995) (stating that the Court's cases have "occasional accusatory eruptions when a segment of the Court lambasts the other segment for 'resuscitating' the long-perceived-as-dead monster of substantive due process"); Cass R. Sunstein, Lochner's Legacy, 87 COLUM. L. REV. 873, 874 (1987) (stating that the Court "tak[es] the lesson of the Lochner period to be the need for judicial deference to legislative enactments").
32. See Dolan v. City of Tigard, 114 S. Ct. 2309, 2326-27, 2329 (1994) (Stevens, J., dissenting) (alleging that the majority has reasserted the reasoning of Lochner); Nollan v. California Coastal Comm'n, 483 U.S. 825, 842 (1987) (Brennan, J. dissenting) (decrying the Court's use of a standard that has been "discredited for the better part of a century"); see also Duncan Kennedy, Towards an Historical Understanding of Legal Consciousness: The Case of Classical Legal Thought in America, 1850-1940, 3 RES. L. & SOC. 10 (1980) ("Modern commentators discussing controversial cases habitually club each other with the charge of 'Lochnerism.'"); Glynn S. Lunney Jr., A Critical Reexamination of Takings Jurisprudence, 90 MICH. L. REV. 1892, 1896 (1992) ("[T]he Court's approach is either to ignore [precedent] or to use name-calling - Lochnerism!"); Randall T. Perdue, The Countermajoritarian 'Ideal': The Role of Judicial Review Under Regulatory Takings Analysis, 2 GEO. MASON L. REV. 333, 339 n.34 (1995) (stating that the Court's cases have "occasional accusatory eruptions when a segment of the Court lambasts the other segment for 'resuscitating' the long-perceived-as-dead monster of substantive due process"); Cass R. Sunstein, Lochner's Legacy, 87 COLUM. L. REV. 873, 874 (1987) (stating that the Court "tak[es] the lesson of the Lochner period to be the need for judicial deference to legislative enactments").
33. See Dolan v. City of Tigard, 114 S. Ct. 2309, 2326-27, 2329 (1994) (Stevens, J., dissenting) (alleging that the majority has reasserted the reasoning of Lochner); Nollan v. California Coastal Comm'n, 483 U.S. 825, 842 (1987) (Brennan, J. dissenting) (decrying the Court's use of a standard that has been "discredited for the better part of a century"); see also Duncan Kennedy, Towards an Historical Understanding of Legal Consciousness: The Case of Classical Legal Thought in America, 1850-1940, 3 RES. L. & SOC. 10 (1980) ("Modern commentators discussing controversial cases habitually club each other with the charge of 'Lochnerism.'"); Glynn S. Lunney Jr., A Critical Reexamination of Takings Jurisprudence, 90 MICH. L. REV. 1892, 1896 (1992) ("[T]he Court's approach is either to ignore [precedent] or to use name-calling - Lochnerism!"); Randall T. Perdue, The Countermajoritarian 'Ideal': The Role of Judicial Review Under Regulatory Takings Analysis, 2 GEO. MASON L. REV. 333, 339 n.34 (1995) (stating that the Court's cases have "occasional accusatory eruptions when a segment of the Court lambasts the other segment for 'resuscitating' the long-perceived-as-dead monster of substantive due process"); Cass R. Sunstein, Lochner's Legacy, 87 COLUM. L. REV. 873, 874 (1987) (stating that the Court "tak[es] the lesson of the Lochner period to be the need for judicial deference to legislative enactments").
34. See Dolan v. City of Tigard, 114 S. Ct. 2309, 2326-27, 2329 (1994) (Stevens, J., dissenting) (alleging that the majority has reasserted the reasoning of Lochner); Nollan v. California Coastal Comm'n, 483 U.S. 825, 842 (1987) (Brennan, J. dissenting) (decrying the Court's use of a standard that has been "discredited for the better part of a century"); see also Duncan Kennedy, Towards an Historical Understanding of Legal Consciousness: The Case of Classical Legal Thought in America, 1850-1940, 3 RES. L. & SOC. 10 (1980) ("Modern commentators discussing controversial cases habitually club each other with the charge of 'Lochnerism.'"); Glynn S. Lunney Jr., A Critical Reexamination of Takings Jurisprudence, 90 MICH. L. REV. 1892, 1896 (1992) ("[T]he Court's approach is either to ignore [precedent] or to use name-calling -Lochnerism!"); Randall T. Perdue, The Countermajoritarian 'Ideal': The Role of Judicial Review Under Regulatory Takings Analysis, 2 GEO. MASON L. REV. 333, 339 n.34 (1995) (stating that the Court's cases have "occasional accusatory eruptions when a segment of the Court lambasts the other segment for 'resuscitating' the long-perceived-as-dead monster of substantive due process"); Cass R. Sunstein, Lochner's Legacy, 87 COLUM. L. REV. 873, 874 (1987) (stating that the Court "tak[es] the lesson of the Lochner period to be the need for judicial deference to legislative enactments").
35. See Dolan v. City of Tigard, 114 S. Ct. 2309, 2326-27, 2329 (1994) (Stevens, J., dissenting) (alleging that the majority has reasserted the reasoning of Lochner); Nollan v. California Coastal Comm'n, 483 U.S. 825, 842 (1987) (Brennan, J. dissenting) (decrying the Court's use of a standard that has been "discredited for the better part of a century"); see also Duncan Kennedy, Towards an Historical Understanding of Legal Consciousness: The Case of Classical Legal Thought in America, 1850-1940, 3 RES. L. & SOC. 10 (1980) ("Modern commentators discussing controversial cases habitually club each other with the charge of 'Lochnerism.'"); Glynn S. Lunney Jr., A Critical Reexamination of Takings Jurisprudence, 90 MICH. L. REV. 1892, 1896 (1992) ("[T]he Court's approach is either to ignore [precedent] or to use name-calling - Lochnerism!"); Randall T. Perdue, The Countermajoritarian 'Ideal': The Role of Judicial Review Under Regulatory Takings Analysis, 2 GEO. MASON L. REV. 333, 339 n.34 (1995) (stating that the Court's cases have "occasional accusatory eruptions when a segment of the Court lambasts the other segment for 'resuscitating' the long-perceived-as-dead monster of substantive due process"); Cass R. Sunstein, Lochner's Legacy, 87 COLUM. L. REV. 873, 874 (1987) (stating that the Court "tak[es] the lesson of the Lochner period to be the need for judicial deference to legislative enactments").
36. See Dolan v. City of Tigard, 114 S. Ct. 2309, 2326-27, 2329 (1994) (Stevens, J., dissenting) (alleging that the majority has reasserted the reasoning of Lochner); Nollan v. California Coastal Comm'n, 483 U.S. 825, 842 (1987) (Brennan, J. dissenting) (decrying the Court's use of a standard that has been "discredited for the better part of a century"); see also Duncan Kennedy, Towards an Historical Understanding of Legal Consciousness: The Case of Classical Legal Thought in America, 1850-1940, 3 RES. L. & SOC. 10 (1980) ("Modern commentators discussing controversial cases habitually club each other with the charge of 'Lochnerism.'"); Glynn S. Lunney Jr., A Critical Reexamination of Takings Jurisprudence, 90 MICH. L. REV. 1892, 1896 (1992) ("[T]he Court's approach is either to ignore [precedent] or to use name-calling - Lochnerism!"); Randall T. Perdue, The Countermajoritarian 'Ideal': The Role of Judicial Review Under Regulatory Takings Analysis, 2 GEO. MASON L. REV. 333, 339 n.34 (1995) (stating that the Court's cases have "occasional accusatory eruptions when a segment of the Court lambasts the other segment for 'resuscitating' the long-perceived-as-dead monster of substantive due process"); Cass R. Sunstein, Lochner's Legacy, 87 COLUM. L. REV. 873, 874 (1987) (stating that the Court "tak[es] the lesson of the Lochner period to be the need for judicial deference to legislative enactments").
37. See, e.g., Dolan, 114 S. Ct. at 2316 n.5 (dismissing Justice Stevens's argument that the decision was grounded in substantive due process); Nollan, 483 U.S. at 840 n.3 (rejecting Justice Brennan's claim that the majority was using due process standards).
38. See infra Part II.B.1.
39. See infra Part II.B.2.
40. See infra Part II.A. tion, distribution, and consumption of goods and services; and (2) the activities by which individuals and groups acquire the wealth to acquire goods and services.").
41. Whether or not these laws actually benefit the poor and middle classes is hotly disputed, but liberals have justified them, at least partially, on that ground. For this reason, I will also use the term "redistributive measures" or "redistributive regulation" to mean the same set of legislative and administrative changes as those described supra note 14.
42. The era is named for Lochner v. New York, 198 U.S. 45 (1905), the case in which the United States Supreme Court voided maximum employment hours legislation for bakeries as violating the Due Process Clause of the Fourteenth Amendment. Here I characterize the Lochner era quite generously as lasting from roughly 1870 until 1937. Lochner itself was decided in 1905, but the analysis underlying that decision became prominent earlier, as did Supreme Court invalidation of economic legislation. Commentators usually mark the end of the Lochner era as the 1937 opinion of West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937). For discussions of this period see, for example, ROBERT G. MCCLOSKEY, THE AMERICAN SUPREME COURT 67-120 (2d ed. 1994); Stephen A. Siegel, Lochner Era Jurisprudence and the American Constitutional Tradition, 70 N.C. L. REV. 1 (1991) [hereinafter Siegel, Lochner Era Jurisprudence]; Stephen A. Siegel, Understanding the Lochner Era: Lessons From the Controversy Over Railroad and Utility Rate Regulation, 70 VA. L. REV. 187 (1984) [hereinafter Siegel, Understanding the Lochner Era]; Aviam Soifer, The Paradox of Paternalism and Laissez-Faire Constitutionalism: United States Supreme Court, 1888-1921, 5 LAW & HIST. REV. 249 (1987). Obviously, Justices during the period differed over principles and their application to particular cases. It is also true that the Court became more resistant to economic regulation in the late phase of the Lochner era. See DAVID P. CURRIE, THE CONSTITUTION IN THE SUPREME COURT: THE SECOND CENTURY 1888-1986, at 40-50, 102-04, 139-52, 208-35 (1990); MCCLOSKEY, supra, at 85-90, 100-17; see also Ray A. Brown, Due Process of Law, Police Power, and the Supreme Court, 40 HARV. L. REV. 943, 945 n.11 (1927) (noting that the Court struck down social and industrial legislation 6% of the time from 1868 to 1912, 7% of the time from 1913 to 1920, and 28% of the time from 1921 to 1927). The later decisions, however, rested on the precedent of the earlier Court, and through analysis of majority opinions and the writings of particular influential Justices, the general nature of Lochner-era constitutionalism can be established.
43. The era is named for Lochner v. New York, 198 U.S. 45 (1905), the case in which the United States Supreme Court voided maximum employment hours legislation for bakeries as violating the Due Process Clause of the Fourteenth Amendment. Here I characterize the Lochner era quite generously as lasting from roughly 1870 until 1937. Lochner itself was decided in 1905, but the analysis underlying that decision became prominent earlier, as did Supreme Court invalidation of economic legislation. Commentators usually mark the end of the Lochner era as the 1937 opinion of West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937). For discussions of this period see, for example, ROBERT G. MCCLOSKEY, THE AMERICAN SUPREME COURT 67-120 (2d ed. 1994); Stephen A. Siegel, Lochner Era Jurisprudence and the American Constitutional Tradition, 70 N.C. L. REV. 1 (1991) [hereinafter Siegel, Lochner Era Jurisprudence]; Stephen A. Siegel, Understanding the Lochner Era: Lessons From the Controversy Over Railroad and Utility Rate Regulation, 70 VA. L. REV. 187 (1984) [hereinafter Siegel, Understanding the Lochner Era]; Aviam Soifer, The Paradox of Paternalism and Laissez-Faire Constitutionalism: United States Supreme Court, 1888-1921, 5 LAW & HIST. REV. 249 (1987). Obviously, Justices during the period differed over principles and their application to particular cases. It is also true that the Court became more resistant to economic regulation in the late phase of the Lochner era. See DAVID P. CURRIE, THE CONSTITUTION IN THE SUPREME COURT: THE SECOND CENTURY 1888-1986, at 40-50, 102-04, 139-52, 208-35 (1990); MCCLOSKEY, supra, at 85-90, 100-17; see also Ray A. Brown, Due Process of Law, Police Power, and the Supreme Court, 40 HARV. L. REV. 943, 945 n.11 (1927) (noting that the Court struck down social and industrial legislation 6% of the time from 1868 to 1912, 7% of the time from 1913 to 1920, and 28% of the time from 1921 to 1927). The later decisions, however, rested on the precedent of the earlier Court, and through analysis of majority opinions and the writings of particular influential Justices, the general nature of Lochner-era constitutionalism can be established.
44. The era is named for Lochner v. New York, 198 U.S. 45 (1905), the case in which the United States Supreme Court voided maximum employment hours legislation for bakeries as violating the Due Process Clause of the Fourteenth Amendment. Here I characterize the Lochner era quite generously as lasting from roughly 1870 until 1937. Lochner itself was decided in 1905, but the analysis underlying that decision became prominent earlier, as did Supreme Court invalidation of economic legislation. Commentators usually mark the end of the Lochner era as the 1937 opinion of West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937). For discussions of this period see, for example, ROBERT G. MCCLOSKEY, THE AMERICAN SUPREME COURT 67-120 (2d ed. 1994); Stephen A. Siegel, Lochner Era Jurisprudence and the American Constitutional Tradition, 70 N.C. L. REV. 1 (1991) [hereinafter Siegel, Lochner Era Jurisprudence]; Stephen A. Siegel, Understanding the Lochner Era: Lessons From the Controversy Over Railroad and Utility Rate Regulation, 70 VA. L. REV. 187 (1984) [hereinafter Siegel, Understanding the Lochner Era]; Aviam Soifer, The Paradox of Paternalism and Laissez-Faire Constitutionalism: United States Supreme Court, 1888-1921, 5 LAW & HIST. REV. 249 (1987). Obviously, Justices during the period differed over principles and their application to particular cases. It is also true that the Court became more resistant to economic regulation in the late phase of the Lochner era. See DAVID P. CURRIE, THE CONSTITUTION IN THE SUPREME COURT: THE SECOND CENTURY 1888-1986, at 40-50, 102-04, 139-52, 208-35 (1990); MCCLOSKEY, supra, at 85-90, 100-17; see also Ray A. Brown, Due Process of Law, Police Power, and the Supreme Court, 40 HARV. L. REV. 943, 945 n.11 (1927) (noting that the Court struck down social and industrial legislation 6% of the time from 1868 to 1912, 7% of the time from 1913 to 1920, and 28% of the time from 1921 to 1927). The later decisions, however, rested on the precedent of the earlier Court, and through analysis of majority opinions and the writings of particular influential Justices, the general nature of Lochner-era constitutionalism can be established.
45. The era is named for Lochner v. New York, 198 U.S. 45 (1905), the case in which the United States Supreme Court voided maximum employment hours legislation for bakeries as violating the Due Process Clause of the Fourteenth Amendment. Here I characterize the Lochner era quite generously as lasting from roughly 1870 until 1937. Lochner itself was decided in 1905, but the analysis underlying that decision became prominent earlier, as did Supreme Court invalidation of economic legislation. Commentators usually mark the end of the Lochner era as the 1937 opinion of West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937). For discussions of this period see, for example, ROBERT G. MCCLOSKEY, THE AMERICAN SUPREME COURT 67-120 (2d ed. 1994); Stephen A. Siegel, Lochner Era Jurisprudence and the American Constitutional Tradition, 70 N.C. L. REV. 1 (1991) [hereinafter Siegel, Lochner Era Jurisprudence]; Stephen A. Siegel, Understanding the Lochner Era: Lessons From the Controversy Over Railroad and Utility Rate Regulation, 70 VA. L. REV. 187 (1984) [hereinafter Siegel, Understanding the Lochner Era]; Aviam Soifer, The Paradox of Paternalism and Laissez-Faire Constitutionalism: United States Supreme Court, 1888-1921, 5 LAW & HIST. REV. 249 (1987). Obviously, Justices during the period differed over principles and their application to particular cases. It is also true that the Court became more resistant to economic regulation in the late phase of the Lochner era. See DAVID P. CURRIE, THE CONSTITUTION IN THE SUPREME COURT: THE SECOND CENTURY 1888-1986, at 40-50, 102-04, 139-52, 208-35 (1990); MCCLOSKEY, supra, at 85-90, 100-17; see also Ray A. Brown, Due Process of Law, Police Power, and the Supreme Court, 40 HARV. L. REV. 943, 945 n.11 (1927) (noting that the Court struck down social and industrial legislation 6% of the time from 1868 to 1912, 7% of the time from 1913 to 1920, and 28% of the time from 1921 to 1927). The later decisions, however, rested on the precedent of the earlier Court, and through analysis of majority opinions and the writings of particular influential Justices, the general nature of Lochner-era constitutionalism can be established.
46. The era is named for Lochner v. New York, 198 U.S. 45 (1905), the case in which the United States Supreme Court voided maximum employment hours legislation for bakeries as violating the Due Process Clause of the Fourteenth Amendment. Here I characterize the Lochner era quite generously as lasting from roughly 1870 until 1937. Lochner itself was decided in 1905, but the analysis underlying that decision became prominent earlier, as did Supreme Court invalidation of economic legislation. Commentators usually mark the end of the Lochner era as the 1937 opinion of West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937). For discussions of this period see, for example, ROBERT G. MCCLOSKEY, THE AMERICAN SUPREME COURT 67-120 (2d ed. 1994); Stephen A. Siegel, Lochner Era Jurisprudence and the American Constitutional Tradition, 70 N.C. L. REV. 1 (1991) [hereinafter Siegel, Lochner Era Jurisprudence]; Stephen A. Siegel, Understanding the Lochner Era: Lessons From the Controversy Over Railroad and Utility Rate Regulation, 70 VA. L. REV. 187 (1984) [hereinafter Siegel, Understanding the Lochner Era]; Aviam Soifer, The Paradox of Paternalism and Laissez-Faire Constitutionalism: United States Supreme Court, 1888-1921, 5 LAW & HIST. REV. 249 (1987). Obviously, Justices during the period differed over principles and their application to particular cases. It is also true that the Court became more resistant to economic regulation in the late phase of the Lochner era. See DAVID P. CURRIE, THE CONSTITUTION IN THE SUPREME COURT: THE SECOND CENTURY 1888-1986, at 40-50, 102-04, 139-52, 208-35 (1990); MCCLOSKEY, supra, at 85-90, 100-17; see also Ray A. Brown, Due Process of Law, Police Power, and the Supreme Court, 40 HARV. L. REV. 943, 945 n.11 (1927) (noting that the Court struck down social and industrial legislation 6% of the time from 1868 to 1912, 7% of the time from 1913 to 1920, and 28% of the time from 1921 to 1927). The later decisions, however, rested on the precedent of the earlier Court, and through analysis of majority opinions and the writings of particular influential Justices, the general nature of Lochner-era constitutionalism can be established.
47. The era is named for Lochner v. New York, 198 U.S. 45 (1905), the case in which the United States Supreme Court voided maximum employment hours legislation for bakeries as violating the Due Process Clause of the Fourteenth Amendment. Here I characterize the Lochner era quite generously as lasting from roughly 1870 until 1937. Lochner itself was decided in 1905, but the analysis underlying that decision became prominent earlier, as did Supreme Court invalidation of economic legislation. Commentators usually mark the end of the Lochner era as the 1937 opinion of West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937). For discussions of this period see, for example, ROBERT G. MCCLOSKEY, THE AMERICAN SUPREME COURT 67-120 (2d ed. 1994); Stephen A. Siegel, Lochner Era Jurisprudence and the American Constitutional Tradition, 70 N.C. L. REV. 1 (1991) [hereinafter Siegel, Lochner Era Jurisprudence]; Stephen A. Siegel, Understanding the Lochner Era: Lessons From the Controversy Over Railroad and Utility Rate Regulation, 70 VA. L. REV. 187 (1984) [hereinafter Siegel, Understanding the Lochner Era]; Aviam Soifer, The Paradox of Paternalism and Laissez-Faire Constitutionalism: United States Supreme Court, 1888-1921, 5 LAW & HIST. REV. 249 (1987). Obviously, Justices during the period differed over principles and their application to particular cases. It is also true that the Court became more resistant to economic regulation in the late phase of the Lochner era. See DAVID P. CURRIE, THE CONSTITUTION IN THE SUPREME COURT: THE SECOND CENTURY 1888-1986, at 40-50, 102-04, 139-52, 208-35 (1990); MCCLOSKEY, supra, at 85-90, 100-17; see also Ray A. Brown, Due Process of Law, Police Power, and the Supreme Court, 40 HARV. L. REV. 943, 945 n.11 (1927) (noting that the Court struck down social and industrial legislation 6% of the time from 1868 to 1912, 7% of the time from 1913 to 1920, and 28% of the time from 1921 to 1927). The later decisions, however, rested on the precedent of the earlier Court, and through analysis of majority opinions and the writings of particular influential Justices, the general nature of Lochner-era constitutionalism can be established.
48. The era is named for Lochner v. New York, 198 U.S. 45 (1905), the case in which the United States Supreme Court voided maximum employment hours legislation for bakeries as violating the Due Process Clause of the Fourteenth Amendment. Here I characterize the Lochner era quite generously as lasting from roughly 1870 until 1937. Lochner itself was decided in 1905, but the analysis underlying that decision became prominent earlier, as did Supreme Court invalidation of economic legislation. Commentators usually mark the end of the Lochner era as the 1937 opinion of West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937). For discussions of this period see, for example, ROBERT G. MCCLOSKEY, THE AMERICAN SUPREME COURT 67-120 (2d ed. 1994); Stephen A. Siegel, Lochner Era Jurisprudence and the American Constitutional Tradition, 70 N.C. L. REV. 1 (1991) [hereinafter Siegel, Lochner Era Jurisprudence]; Stephen A. Siegel, Understanding the Lochner Era: Lessons From the Controversy Over Railroad and Utility Rate Regulation, 70 VA. L. REV. 187 (1984) [hereinafter Siegel, Understanding the Lochner Era]; Aviam Soifer, The Paradox of Paternalism and Laissez-Faire Constitutionalism: United States Supreme Court, 1888-1921, 5 LAW & HIST. REV. 249 (1987). Obviously, Justices during the period differed over principles and their application to particular cases. It is also true that the Court became more resistant to economic regulation in the late phase of the Lochner era. See DAVID P. CURRIE, THE CONSTITUTION IN THE SUPREME COURT: THE SECOND CENTURY 1888-1986, at 40-50, 102-04, 139-52, 208-35 (1990); MCCLOSKEY, supra, at 85-90, 100-17; see also Ray A. Brown, Due Process of Law, Police Power, and the Supreme Court, 40 HARV. L. REV. 943, 945 n.11 (1927) (noting that the Court struck down social and industrial legislation 6% of the time from 1868 to 1912, 7% of the time from 1913 to 1920, and 28% of the time from 1921 to 1927). The later decisions, however, rested on the precedent of the earlier Court, and through analysis of majority opinions and the writings of particular influential Justices, the general nature of Lochner-era constitutionalism can be established.
49. See AMERICAN LEGAL REALISM 77 (William W. Fisher III et al. eds., 1993); Cox, supra note 6, at 117-37 (1987); MORTON J. HORWITZ, THE TRANSFORMATION OF AMERICAN LAW 1870-1960, at 20-27 (1992).
50. See AMERICAN LEGAL REALISM 77 (William W. Fisher III et al. eds., 1993); Cox, supra note 6, at 117-37 (1987); MORTON J. HORWITZ, THE TRANSFORMATION OF AMERICAN LAW 1870-1960, at 20-27 (1992).
51. See Cox, supra note 6, at 117-37; GERALD GUNTHER, CONSTITUTIONAL LAW 449-53 (11th ed. 1985); MCCLOSKEY, supra note 16, at 91-113; GEOFFREY R. STONE, ET AL., CONSTITUTIONAL LAW 788-90, 802-06 (2d ed. 1991).
52. See Cox, supra note 6, at 117-37; GERALD GUNTHER, CONSTITUTIONAL LAW 449-53 (11th ed. 1985); MCCLOSKEY, supra note 16, at 91-113; GEOFFREY R. STONE, ET AL., CONSTITUTIONAL LAW 788-90, 802-06 (2d ed. 1991).
53. See Cox, supra note 6, at 117-37; GERALD GUNTHER, CONSTITUTIONAL LAW 449-53 (11th ed. 1985); MCCLOSKEY, supra note 16, at 91-113; GEOFFREY R. STONE, ET AL., CONSTITUTIONAL LAW 788-90, 802-06 (2d ed. 1991).
54. This was the view suggested by Justice Holmes in his dissent in Lochner, 198 U.S. at 75. For similar analyses see CLYDE E. JACOBS, LAW WRITERS AND THE COURTS 24 (1954); ARNOLD M. PAUL, CONSERVATIVE CRISIS AND THE RULE OF LAW 232-33, 236-37 (1976); CARL SWISHER, AMERICAN CONSTITUTIONAL DEVELOPMENT 341, 393, 520-21 (1943). See also Gerald Gunther, The Supreme Court, 1971 Term - Foreword: In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection, 86 HARV. L. REV. 1, 42 (1972) (quoting Justice Holmes's dissent decrying the majority's "laissez-faire" decision). For analyses of the relationship between the Lochner-era decisions and the economic theories of the American classical economists, see Herbert Hovenkamp, The Political Economy of Substantive Due Process, 40 STAN. L. REV. 379 (1988);
55. This was the view suggested by Justice Holmes in his dissent in Lochner, 198 U.S. at 75. For similar analyses see CLYDE E. JACOBS, LAW WRITERS AND THE COURTS 24 (1954); ARNOLD M. PAUL, CONSERVATIVE CRISIS AND THE RULE OF LAW 232-33, 236-37 (1976); CARL SWISHER, AMERICAN CONSTITUTIONAL DEVELOPMENT 341, 393, 520-21 (1943). See also Gerald Gunther, The Supreme Court, 1971 Term - Foreword: In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection, 86 HARV. L. REV. 1, 42 (1972) (quoting Justice Holmes's dissent decrying the majority's "laissez-faire" decision). For analyses of the relationship between the Lochner-era decisions and the economic theories of the American classical economists, see Herbert Hovenkamp, The Political Economy of Substantive Due Process, 40 STAN. L. REV. 379 (1988);
56. This was the view suggested by Justice Holmes in his dissent in Lochner, 198 U.S. at 75. For similar analyses see CLYDE E. JACOBS, LAW WRITERS AND THE COURTS 24 (1954); ARNOLD M. PAUL, CONSERVATIVE CRISIS AND THE RULE OF LAW 232-33, 236-37 (1976); CARL SWISHER, AMERICAN CONSTITUTIONAL DEVELOPMENT 341, 393, 520-21 (1943). See also Gerald Gunther, The Supreme Court, 1971 Term - Foreword: In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection, 86 HARV. L. REV. 1, 42 (1972) (quoting Justice Holmes's dissent decrying the majority's "laissez-faire" decision). For analyses of the relationship between the Lochner-era decisions and the economic theories of the American classical economists, see Herbert Hovenkamp, The Political Economy of Substantive Due Process, 40 STAN. L. REV. 379 (1988);
57. This was the view suggested by Justice Holmes in his dissent in Lochner, 198 U.S. at 75. For similar analyses see CLYDE E. JACOBS, LAW WRITERS AND THE COURTS 24 (1954); ARNOLD M. PAUL, CONSERVATIVE CRISIS AND THE RULE OF LAW 232-33, 236-37 (1976); CARL SWISHER, AMERICAN CONSTITUTIONAL DEVELOPMENT 341, 393, 520-21 (1943). See also Gerald Gunther, The Supreme Court, 1971 Term -Foreword: In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection, 86 HARV. L. REV. 1, 42 (1972) (quoting Justice Holmes's dissent decrying the majority's "laissez-faire" decision). For analyses of the relationship between the Lochner-era decisions and the economic theories of the American classical economists, see Herbert Hovenkamp, The Political Economy of Substantive Due Process, 40 STAN. L. REV. 379 (1988);
58. This was the view suggested by Justice Holmes in his dissent in Lochner, 198 U.S. at 75. For similar analyses see CLYDE E. JACOBS, LAW WRITERS AND THE COURTS 24 (1954); ARNOLD M. PAUL, CONSERVATIVE CRISIS AND THE RULE OF LAW 232-33, 236-37 (1976); CARL SWISHER, AMERICAN CONSTITUTIONAL DEVELOPMENT 341, 393, 520-21 (1943). See also Gerald Gunther, The Supreme Court, 1971 Term - Foreword: In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection, 86 HARV. L. REV. 1, 42 (1972) (quoting Justice Holmes's dissent decrying the majority's "laissez-faire" decision). For analyses of the relationship between the Lochner-era decisions and the economic theories of the American classical economists, see Herbert Hovenkamp, The Political Economy of Substantive Due Process, 40 STAN. L. REV. 379 (1988);
59. Duncan Kennedy, The Role of Law in Economic Thought: Essays on the Fetishism of Commodities, 34 AM. U. L. REV. 939, 940-58 (1985).
60. See also Siegel, Understanding the Lochner Era, supra note 16, at 215-250 (describing the influence of the shift from classical to neoclassical economic theory on the constitutional analysis of rate regulation).
61. See JAMES WILLARD HURST, LAW AND THE CONDITIONS OF FREEDOM IN THE NINETEENTH-CENTURY UNITED STATES 3-32 (1956).
62. See William E. Forbath, The Ambiguities of Free Labor: Labor and Law in the Gilded Age, 1985 WIS. L. REV. 767.
63. See HOWARD GILLMAN, THE CONSTITUTION BESIEGED: THE RISE AND DEMISE OF LOCHNER ERA POLICE POWERS JURISPRUDENCE (1993); Charles W. McCurdy, Justice Field and the Jurisprudence of Government-Business Relations: Some Parameters of Laissez Faire Constitutionalism 1863-1897, 61 J. AM. HIST. 970 (1975). This list, notes 19-22 and accompanying text, is not meant to exhaust the explanations for the Court's jurisprudence.
64. See HOWARD GILLMAN, THE CONSTITUTION BESIEGED: THE RISE AND DEMISE OF LOCHNER ERA POLICE POWERS JURISPRUDENCE (1993); Charles W. McCurdy, Justice Field and the Jurisprudence of Government-Business Relations: Some Parameters of Laissez Faire Constitutionalism 1863-1897, 61 J. AM. HIST. 970 (1975). This list, notes 19-22 and accompanying text, is not meant to exhaust the explanations for the Court's jurisprudence.
65. Coppage v. Kansas, 236 U.S. 1, 23 (1915).
66. Lochner, 198 U.S. at 61.
67. 2 WILLIAM BLACKSTONE, COMMENTARIES * 2. "Absolute dominion" was merely an ideal rather than a legal reality for Blackstone. See Duncan Kennedy, The Structure of Blackstone's Commentaries, 28 BUFF. L. REV. 209, 319 (1979). For discussions of Blackstone's views on property and their impact on the Lochner-era Court and current jurisprudence, see Felix S. Cohen, Dialogue on Private Property, 9 RUTGERS L. REV. 357, 362-63 (1954); Kennedy, supra, at 318-32; Jeanne L. Schroeder, Chix Nix Bundle-O-Stix: A Feminist Critique of the Disaggregation of Property, 93 MICH. L. REV. 239, 278-83 (1994); Kenneth Vandevelde, The New Property of the Nineteenth Century: The Development of the Modern Concept of Property, 29 BUFF. L. REV. 325, 331-32 (1980).
68. 2 WILLIAM BLACKSTONE, COMMENTARIES * 2. "Absolute dominion" was merely an ideal rather than a legal reality for Blackstone. See Duncan Kennedy, The Structure of Blackstone's Commentaries, 28 BUFF. L. REV. 209, 319 (1979). For discussions of Blackstone's views on property and their impact on the Lochner-era Court and current jurisprudence, see Felix S. Cohen, Dialogue on Private Property, 9 RUTGERS L. REV. 357, 362-63 (1954); Kennedy, supra, at 318-32; Jeanne L. Schroeder, Chix Nix Bundle-O-Stix: A Feminist Critique of the Disaggregation of Property, 93 MICH. L. REV. 239, 278-83 (1994); Kenneth Vandevelde, The New Property of the Nineteenth Century: The Development of the Modern Concept of Property, 29 BUFF. L. REV. 325, 331-32 (1980).
69. 2 WILLIAM BLACKSTONE, COMMENTARIES * 2. "Absolute dominion" was merely an ideal rather than a legal reality for Blackstone. See Duncan Kennedy, The Structure of Blackstone's Commentaries, 28 BUFF. L. REV. 209, 319 (1979). For discussions of Blackstone's views on property and their impact on the Lochner-era Court and current jurisprudence, see Felix S. Cohen,
70. 2 WILLIAM BLACKSTONE, COMMENTARIES * 2. "Absolute dominion" was merely an ideal rather than a legal reality for Blackstone. See Duncan Kennedy, The Structure of Blackstone's Commentaries, 28 BUFF. L. REV. 209, 319 (1979). For discussions of Blackstone's views on property and their impact on the Lochner-era Court and current jurisprudence, see Felix S. Cohen, Dialogue on Private Property, 9 RUTGERS L. REV. 357, 362-63 (1954); Kennedy, supra, at 318-32; Jeanne L. Schroeder, Chix Nix Bundle-O-Stix: A Feminist Critique of the Disaggregation of Property, 93 MICH. L. REV. 239, 278-83 (1994); Kenneth Vandevelde, The New Property of the Nineteenth Century: The Development of the Modern Concept of Property, 29 BUFF. L. REV. 325, 331-32 (1980).
71. 2 WILLIAM BLACKSTONE, COMMENTARIES * 2. "Absolute dominion" was merely an ideal rather than a legal reality for Blackstone. See Duncan Kennedy, The Structure of Blackstone's Commentaries, 28 BUFF. L. REV. 209, 319 (1979). For discussions of Blackstone's views on property and their impact on the Lochner-era Court and current jurisprudence, see Felix S. Cohen, Dialogue on Private Property, 9 RUTGERS L. REV. 357, 362-63 (1954); Kennedy, supra, at 318-32; Jeanne L. Schroeder, Chix Nix Bundle-O-Stix: A Feminist Critique of the Disaggregation of Property, 93 MICH. L. REV. 239, 278-83 (1994); Kenneth Vandevelde, The New Property of the Nineteenth Century: The Development of the Modern Concept of Property, 29 BUFF. L. REV. 325, 331-32 (1980).
72. Liberty was also a broadly defined category, reaching out to encompass "freedom of contract," and in tandem with property was the foundation for invalidating economic redistributive legislation under the Fourteenth Amendment. The analysis loses nothing, however, by discussing property rather than liberty. At bottom the "courts regard the right to contract, not as a phase of liberty - a sort of freedom of mental motion and locomotion - but as a phase of property, to be protected as such." Roscoe Pound, Liberty of Contract, 18 YALE L.J. 454, 461 (1909); see also Coppage v. Kansas, 236 U.S. 1, 14 (1915) ("Included in the right of private property ... is the right to make contracts."); Adair v. United States, 208 U.S. 161, 172 (1908) (holding that a limitation on freedom of contract is "an invasion of the personal liberty, as well as of the right of property, guaranteed by [the Fifth] Amendment"); EPSTEIN, supra note 8, at 280-81 (stating that property is the basis for claims against New Deal infringements of contract rights); Siegel, Understanding the Lochner Era, supra note 16, at 260-61 & 263 n.313 ("'[L]iberty of contract' follows necessarily from the decision, shared by liberals and conservatives, to protect the free market value of property.").
73. See, e.g., Callender v. Marsh, 18 Mass. (1 Pick.) 418 (1823) (finding no taking when the regrading of a Boston street caused extensive damage to an adjacent house through the removal of lateral support); THEODORE SEDGWICK, A TREATISE ON THE RULES WHICH GOVERN THE INTERPRETATION AND CONSTRUCTION OF STATUTORY AND CONSTITUTIONAL LAW 454-63 (2d ed. 1874). Many contemporary scholars have noted the same fact. See, e.g., MORTON HORWITZ, THE TRANSFORMATION OF AMERICAN LAW, 1780-1860, at 71-74, 132 (1977); Siegel, Lochner Era Jurisprudence, supra note 16, at 7.
74. Pumpelly v. Green Bay Co., 80 U.S. 166, 176-78 (1871) (construing the almost identically worded takings clause in the Wisconsin constitution). See generally JOHN LEWIS, TREATISE ON THE LAW OF EMINENT DOMAIN IN THE UNITED STATES (3d ed. 1909).
75. The New Hampshire case of Eaton v. Boston, Concord, & Montreal R.R., 51 N.H. 504 (1872), was probably the leading state case holding that any action by the state that interfered with the use of land was constitutionally a taking. For a list and description of state cases in which there was an injury to property that deprived the owner of its ordinary use, and, thus was "equivalent to a taking," see THOMAS M. COOLEY, A TREATISE ON THE CONSTITUTIONAL LIMITATIONS WHICH REST UPON THE LEGISLATIVE POWER OF THE STATES OF THE AMERICAN UNION 680-81, 680 nn.3-5, 681 nn.1-3 (4th ed. 1878).
76. Pumpelly, 80 U.S. at 180.
77. See McCLOSKEY, supra note 16, at 76-82, 85-86; LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW 432-34 (2d ed. 1988); Edward S. Corwin, The Doctrine of Due Process of Law Before the Civil War, 24 HARV. L. REV. 366, 366 (1911);
78. See McCLOSKEY, supra note 16, at 76-82, 85-86; LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW 432-34 (2d ed. 1988); Edward S. Corwin, The Doctrine of Due Process of Law Before the Civil War, 24 HARV. L. REV. 366, 366 (1911);
79. See McCLOSKEY, supra note 16, at 76-82, 85-86; LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW 432-34 (2d ed. 1988); Edward S. Corwin, The Doctrine of Due Process of Law Before the Civil War, 24 HARV. L. REV. 366, 366 (1911);
80. Stephen A. Siegel, Understanding the Nineteenth Century Contract Clause: The Role of the Property-Privilege Distinction and "Takings" Clause Jurisprudence, 60 S. CAL. L. REV. 1, 75 n.374 (1986).
81. For an enjoyably written account of the development of due process jurisprudence in the Supreme Court, see MCCLOSKEY, supra note 16, at 74-89, 100-08.
82. Stephen Siegel makes a similar argument regarding the nineteenth-century Takings and Contract Clauses: Takings jurisprudence was the model for understanding Contract Clause protection in the last century. See Siegel, supra note 31; see also Siegel, Understanding the Lochner Era, supra note 16, at 216 n.130 ("Liberty of contract, so prominent in the industrial regulation cases such as Lochner, was necessarily implied by and followed from the incorporation of the 'just compensation' principle.").
83. One of the Court's important doctrinal steps toward incorporating the due process and takings doctrines came in 1897, when it concluded that taking property without compensation was a violation of the Fourteenth Amendment's prohibition against the deprivation of property without due process. See Chicago, Burlington & Quincy R.R. Co. v. Chicago, 166 U.S. 226, 231-34 (1897). The takings principle was officially incorporated into the Fourteenth Amendment's concept of due process a year earlier in Fallbrook Irrigation District v. Bradley, 164 U.S. 112 (1896). Professor Siegel describes the development of the theory that legislative acts taking property were a deprivation of due process in state cases of a much earlier period. See Siegel, Lochner Era Jurisprudence, supra note 16, at 56-59.
84. Many writers during the early part of the country's history had a broader conception of property than title and possession. See JENNIFER NEDELSKY, PRIVATE PROPERTY AND THE LIMITS OF AMERICAN CONSTITUTIONALISM (1990); Laura S. Underkuffler, On Property: An Essay, 100 YALE L.J. 127, 133-38 (1990); John O. McGinnis, The Partial Republican, 35 WM. & MARY L. REV. 1751 (1994) (reviewing CASS SUNSTEIN, THE PARTIAL CONSTITUTION (1993)). However, prior to the late nineteenth century American courts under state and federal constitutional law protected a fairly narrow definition of property rights: Property holders were primarily guaranteed the title and possession of their wealth but not its use and value. See Siegel, Lochner Era Jurisprudence, supra note 16, at 7. The point here is simply that during the Lochner era, as defined supra note 16, the notion of property protected by the Constitution became a larger, more abstract category of economic interests than those interests protected by prior federal and state courts under their constitutions.
85. Many writers during the early part of the country's history had a broader conception of property than title and possession. See JENNIFER NEDELSKY, PRIVATE PROPERTY AND THE LIMITS OF AMERICAN CONSTITUTIONALISM (1990); Laura S. Underkuffler, On Property: An Essay, 100 YALE L.J. 127, 133-38 (1990); John O. McGinnis, The Partial Republican, 35 WM. & MARY L. REV. 1751 (1994) (reviewing CASS SUNSTEIN, THE PARTIAL CONSTITUTION (1993)). However, prior to the late nineteenth century American courts under state and federal constitutional law protected a fairly narrow definition of property rights: Property holders were primarily guaranteed the title and possession of their wealth but not its use and value. See Siegel, Lochner Era Jurisprudence, supra note 16, at 7. The point here is simply that during the Lochner era, as defined supra note 16, the notion of property protected by the Constitution became a larger, more abstract category of economic interests than those interests protected by prior federal and state courts under their constitutions.
86. Many writers during the early part of the country's history had a broader conception of property than title and possession. See JENNIFER NEDELSKY, PRIVATE PROPERTY AND THE LIMITS OF AMERICAN CONSTITUTIONALISM (1990); Laura S. Underkuffler, On Property: An Essay, 100 YALE L.J. 127, 133-38 (1990); John O. McGinnis, The Partial Republican, 35 WM. & MARY L. REV. 1751 (1994) (reviewing CASS SUNSTEIN, THE PARTIAL CONSTITUTION (1993)). However, prior to the late nineteenth century American courts under state and federal constitutional law protected a fairly narrow definition of property rights: Property holders were primarily guaranteed the title and possession of their wealth but not its use and value. See Siegel, Lochner Era Jurisprudence, supra note 16, at 7. The point here is simply that during the Lochner era, as defined supra note 16, the notion of property protected by the Constitution became a larger, more abstract category of economic interests than those interests protected by prior federal and state courts under their constitutions.
87. Commentators have argued that the definition became more capacious in order to include the new methods of holding wealth brought on by industrialization. Early statements of this view appear in JOHN R. COMMONS, LEGAL FOUNDATIONS OF CAPITALISM (1924) and Francis S. Philbrick, Changing Conceptions of Property In Law, 86 U. PA. L. REV. 691 (1938). More recent interpretations are in HORWITZ, supra note 17, at 145-48; Thomas C. Grey, The Disintegration of Property, in PROPERTY 70, 74-76 (J. Roland Pennock & John W. Chapman eds., 1980); William Michael Treanor, The Original Understanding of the Takings Clause and the Political Process, 95 COLUM. L. REV. 782, 799-800 (1995).
88. Commentators have argued that the definition became more capacious in order to include the new methods of holding wealth brought on by industrialization. Early statements of this view appear in JOHN R. COMMONS, LEGAL FOUNDATIONS OF CAPITALISM (1924) and Francis S. Philbrick, Changing Conceptions of Property In Law, 86 U. PA. L. REV. 691 (1938). More recent interpretations are in HORWITZ, supra note 17, at 145-48; Thomas C. Grey, The Disintegration of Property, in PROPERTY 70, 74-76 (J. Roland Pennock & John W. Chapman eds., 1980); William Michael Treanor, The Original Understanding of the Takings Clause and the Political Process, 95 COLUM. L. REV. 782, 799-800 (1995).
89. Commentators have argued that the definition became more capacious in order to include the new methods of holding wealth brought on by industrialization. Early statements of this view appear in JOHN R. COMMONS, LEGAL FOUNDATIONS OF CAPITALISM (1924) and Francis S. Philbrick, Changing Conceptions of Property In Law, 86 U. PA. L. REV. 691 (1938). More recent interpretations are in HORWITZ, supra note 17, at 145-48; Thomas C. Grey, The Disintegration of Property, in PROPERTY 70, 74-76 (J. Roland Pennock & John W. Chapman eds., 1980); William Michael Treanor, The Original Understanding of the Takings Clause and the Political Process, 95 COLUM. L. REV. 782, 799-800 (1995).
90. Commentators have argued that the definition became more capacious in order to include the new methods of holding wealth brought on by industrialization. Early statements of this view appear in JOHN R. COMMONS, LEGAL FOUNDATIONS OF CAPITALISM (1924) and Francis S. Philbrick, Changing Conceptions of Property In Law, 86 U. PA. L. REV. 691 (1938). More recent interpretations are in HORWITZ, supra note 17, at 145-48; Thomas C. Grey, The Disintegration of Property, in PROPERTY 70, 74-76 (J. Roland Pennock & John W. Chapman eds., 1980); William Michael Treanor, The Original Understanding of the Takings Clause and the Political Process, 95 COLUM. L. REV. 782, 799-800 (1995).
91. Commentators have argued that the definition became more capacious in order to include the new methods of holding wealth brought on by industrialization. Early statements of this view appear in JOHN R. COMMONS, LEGAL FOUNDATIONS OF CAPITALISM (1924) and Francis S. Philbrick, Changing Conceptions of Property In Law, 86 U. PA. L. REV. 691 (1938). More recent interpretations are in HORWITZ, supra note 17, at 145-48; Thomas C. Grey, The Disintegration of Property, in PROPERTY 70, 74-76 (J. Roland Pennock & John W. Chapman eds., 1980); William Michael Treanor, The Original Understanding of the Takings Clause and the Political Process, 95 COLUM. L. REV. 782, 799-800 (1995).
92. 134 U.S. 418 (1890).
93. COMMONS, supra note 36, at 16 (discussing the Court's holding in Chicago, Milwaukee & St. Paul Railway Co.).
94. 158 U.S. 601 (1895).
95. Id. at 637.
96. 169 U.S. 366, 387 (1898); accord Coppage v. Kansas, 236 U.S. 1, 23 (1915) ("One of the ways of obtaining property is by contract. The right, therefore, to contract cannot be infringed by the legislature without violating the letter and spirit of the constitution.").
97. See, e.g., Tyson & Brother v. Banton, 273 U.S. 418, 429 (1927); Omnia Co. v. United States, 261 U.S. 502, 508 (1923).
98. Adkins v. Children's Hosp., 261 U.S. 525, 545 (1923).
99. See, e.g., Block v. Hirsh, 256 U.S. 135, 160-65 (1921) (McKenna, J., dissenting) ("There can be no conception of property aside from its control and use, and upon its use depends its value."); International News Serv. v. Associated Press, 248 U.S. 215, 241-42 (holding that the "product of the mind" at issue was protected from reproduction by competitors); id. at 250 (1918) (Brandeis, J., dissenting) (stating that the product of the mind should not be protected after voluntary communication to others); Pollock v. Farmers' Loan & Trust Co., 158 U.S. 601, 625-26, 628 (1895) (stating that income from property is no different than capital from property); id. at 691-92 (Brown, J., dissenting) (arguing that a tax on rents is a tax upon the land itself); Chicago, Milwaukee, & St. Paul Ry. Co. v. Minnesota, 134 U.S. 418, 485 (1890) (stating that property includes not just physical things but exchange value); The Slaughterhouse Cases, 83 U.S. 36, 127 (1872) (Swayne, J., dissenting) ("Property is everything which has an exchangeable value."); see also COMMONS, supra note 36, at 16-17; LEWIS, supra note 28, at 51-56; Forbath, supra note 21, at 794-98. Lower federal and state courts recognized as property the right to such intangibles as the use of the mail system, the right of a stockholder to vote for all directors of a corporation, the right of a building owner to use an elevator, the right to control the disposition of a dead body, the right to sue under a particular right of action, and the right to have a debt paid, as well as the more commonplace intangibles, such as business goodwill, trade secrets, and accession. See Grey, supra note 36, at 70: Vandevelde, supra note 25, at 333, 358-59.
100. See, e.g., Mugler v. Kansas, 123 U.S. 623 (1887).
101. See, e.g., id. at 633-35 (Counsel's Argument for Mugler), 664 (describing counsel's argument).
102. The Court stated: A prohibition simply upon the use of property for purposes that are declared, by valid legislation, to be injurious to the health, morals, or safety of the community, cannot, in any just sense, be deemed a taking . . . . Such legislation does not disturb the owner in the control or use of his property for lawful purposes, nor restrict his right to dispose of it, but is only a declaration by the State that its use by any one, for certain forbidden purposes, is prejudicial to the public interests.
103. Id. at 668-69. The Court's reasoning, however, was not that a prohibition on use could never be deemed a taking, but that a prohibition that furthered health, morals, or safety could not be. See infra Part I.B for a discussion of police power versus takings.
104. For further exploration of the importance of rate cases to the development of the Court's due process jurisprudence, see HORWITZ, supra note 17, at 160-64; MCCLOSKEY, supra note 16, at 102-05; Siegel, Understanding the Lochner Era, supra note 16.
105. Justice Field described the problem in Munn v. Illinois: If the legislature of a State, under pretense of providing for the public good, or for any other reason, can determine, against the consent of the owner, the uses to which private property shall be devoted, or the prices which the owner shall receive for its uses, it can deprive him of the property as completely as by a special act for its confiscation or destruction . . . . If it be admitted that the legislature has any control over the compensation, the extent of that compensation becomes a mere matter of legislative discretion. The amount fixed will operate as a partial destruction of the value of the property, if it fall below the amount which the owner would obtain by contract, and, practically, as a complete destruction, if it be less than the cost of retaining its possession. There is, indeed, no protection of any value under the constitutional provision, which does not extend to the use and income of the property, as well as to its title and possession. 94 U.S. 113, 142-43 (1876).
106. See, e.g., Missouri Rate Cases, 230 U.S. 474 (1913); Lake Shore Ry. Co. v. Smith, 173 U.S. 684, 687, 696 (1898); Smyth v. Ames, 169 U.S. 466, 523-27 (1898); Reagan v. Farmers' Loan & Trust Co., 154 U.S. 362, 399, 410-13 (1894); Chicago, Milwaukee, & St. Paul Ry. Co. v. Minnesota, 134 U.S. 418, 458 (1889).
107. See, e.g., Missouri Rate Cases, 230 U.S. 474 (1913); Lake Shore Ry. Co. v. Smith, 173 U.S. 684, 687, 696 (1898); Smyth v. Ames, 169 U.S. 466, 523-27 (1898); Reagan v. Farmers' Loan & Trust Co., 154 U.S. 362, 399, 410-13 (1894); Chicago, Milwaukee, & St. Paul Ry. Co. v. Minnesota, 134 U.S. 418, 458 (1889).
108. See, e.g., Missouri Rate Cases, 230 U.S. 474 (1913); Lake Shore Ry. Co. v. Smith, 173 U.S. 684, 687, 696 (1898); Smyth v. Ames, 169 U.S. 466, 523-27 (1898); Reagan v. Farmers' Loan & Trust Co., 154 U.S. 362, 399, 410-13 (1894); Chicago, Milwaukee, & St. Paul Ry. Co. v. Minnesota, 134 U.S. 418, 458 (1889).
109. See, e.g., Missouri Rate Cases, 230 U.S. 474 (1913); Lake Shore Ry. Co. v. Smith, 173 U.S. 684, 687, 696 (1898); Smyth v. Ames, 169 U.S. 466, 523-27 (1898); Reagan v. Farmers' Loan & Trust Co., 154 U.S. 362, 399, 410-13 (1894); Chicago, Milwaukee, & St. Paul Ry. Co. v. Minnesota, 134 U.S. 418, 458 (1889).
110. The Railroad Comm'n Cases, 116 U.S. 307, 331 (1886); see also HORWITZ, supra note 17, at 160-61 (stating that the Court's notion of constitutional rate regulation rested on an analogy to the law of eminent domain); Siegel, Understanding the Lochner Era, supra note 16, at 216-23 (stating that the concept of eminent domain was "[t]he touchstone of Justice Brewer's analysis" of rate regulation).
111. See, e.g., Chicago, Milwaukee, & St. Paul R.R. v. Wisconsin, 238 U.S. 490 (1915); Oregon R.R. & Navigation Co. v. Fairchild, 224 U.S. 510, 524 (1912); Curtin v. Benson, 222 U.S. 78, 86 (1911); Hudson County Water Co. v. McCarter, 209 U.S. 349, 355 (1908); Martin v. District of Columbia, 205 U.S. 135, 139 (1907); Illinois ex rel. Grimwood, 200 U.S. 561, 582 (1906).
112. See, e.g., Delaware, Lackawanna & W. R.R. v. Town of Morristown, 276 U.S. 182, 194-95 (1928); Adkins v. Children's Hosp., 261 U.S. 525, 554 (1923); Pennsylvania Coal v. Mahon, 260 U.S. 393, 414-15 (1922); Block v. Hirsh, 256 U.S. 135, 156 (1921); see also Louisville Joint Stock Land Bank v. Radford, 295 U.S. 555, 602 (1935) (reviewing a federal bankruptcy regulation under the Fifth Amendment with the same analysis).
113. COMMONS, supra note 36, at 25: see also ERNST FREUND, THE POLICE POWER: PUBLIC POLICY AND CONSTITUTIONAL RIGHTS § 553 (1904) (stating that the value of land is little more than the value of its expected uses).
114. See Barbier v. Connolly, 113 U.S. 27, 31 (1885) (claiming that the Fourteenth Amendment "undoubtedly intended" to protect both the title to property and the owner's right to dictate its use and enjoy its income); Munn v. Illinois, 94 U.S. 113, 143 (1876) (Field, J., dissenting) ("There is, indeed, no protection of any value under the constitutional provision, which does not extend to the use and income of the property, as well as to its title and possession."); LEWIS, supra note 28, at 56-57 ("If property, then, consists, not in tangible things themselves, but in certain rights in and appurtenant to those things, it follows that when a person is deprived of any of those rights, he is to that extent deprived of his property . . . though his title and possession remain undisturbed . . . ."); Corwin, supra note 31, at 383-84; Sunstein, supra note 9, at 878-79.
115. This appears most clearly in the rate regulation cases. Once the Court understood property to include the profits earned from property, government alterations to the purchase price constituted takings. See Tyson & Brother v. Banton, 273 U.S. 418, 429 (1927) (finding that the ability of an owner to fix the price at which property is sold or used is an "inherent attribute of the property itself"); German Alliance Ins. Co. v. Lewis, 233 U.S. 389, 419 (1914) (Lamar, J., dissenting) ("The fixing of the price for the use of private property is as much a taking as though the fee itself had been condemned for a lump sum."); Reagan, 154 U.S. at 410 (asserting that it is no less a taking to set rates below market value than to take title); COMMONS, supra note 36, at 195-96 (same).
116. For descriptions of the emergence of the police power, see GILLMAN, supra note 22, at 19-60; HORWITZ, supra note 17, at 27-31. For descriptions of the police power, see, for example, Berman v. Parker, 348 U.S. 26, 32 (1954); Lochner v. New York, 198 U.S. 45, 53 (1905); Munn, 94 U.S. at 145-48 (Field, J., dissenting); COOLEY, supra note 29, at 713-50; FREUND, supra note 54, §§ 2-3, 63.
117. E.g., Adkins, 261 U.S. at 546 ("An interference with [the right to make contracts for the acquisition of money] must be deemed to be arbitrary, unless it be supportable as a reasonable exercise of the police power of the State."); Block, 256 U.S. at 166-67 (McKenna, J., dissenting) (remarking on "the prohibition of the use of property to the injury of others, a prohibition that is expressed in one of the maxims of our jurisprudence"); Crowley v. Christensen, 137 U.S. 86, 89-90 (1890) ("And as to the enjoyment of property, the rule is general that it must be accompanied with such limitations as will not impair the equal enjoyment by others of their property."); Powell v. Pennsylvania, 127 U.S. 678, 685 (1888) ("The power which the legislature has to promote the general welfare is very great . . . [though it] must be so exercised as not to impair the fundamental rights of life, liberty and property . . . ."); Mugler v. Kansas, 123 U.S. 623, 667-69 (1887) ("A prohibition simply upon the use of property for purposes that are deduced, by valid legislation, to be injurious to the health, morals, or safety of the community, cannot, in any just sense, be deemed a taking or an appropriation of property for the public benefit."); Beer Co. v. Massachusetts, 97 U.S. 25, 33 (1877) ("Whatever differences of opinion may exist as to the extent and boundaries of the police power . . . there seems to be no doubt that it does extend to the protection of the lives, health, and property of the citizens, and to the preservation of good order and the public morals."); Munn, 94 U.S. at 124-25 ("Under [police] powers the government regulates the conduct of its citizens one towards another, and the manner in which each shall use his own property, when such regulation becomes necessary for the public good.").
118. See, e.g., Tyson & Brother, 273 U.S. at 430-37 ("[T]he mere declaration by the legislature that a particular kind of property or business is affected with a public interest is not conclusive . . . . The matter is one which is always open to judicial inquiry."); Adkins, 261 U.S. at 548-51 (describing the Court's duty to decide whether a statute is within legislative authority and reviewing cases that contrast the public interest with individual property rights); Block, 256 U.S. at 166-70 (McKenna, J., dissenting) (arguing that the court must draw the line between legitimate and illegitimate police powers, otherwise police powers can be used to justify anything); Lochner, 198 U.S. at 56-58 ("In every case that comes before this court [regarding the use of police powers], the question necessarily arises: Is it a fair, reasonable, and appropriate exercise of the police power of the State, or is it an unreasonable, unnecessary, and arbitrary interference with . . . personal liberty?").
119. Some commentators have argued that the means/end and cause/effect tests described here are not distinct. Professor Brauneis argues, for example, that they are both ways for Lochner-era thinkers to talk about the distinction between "what belongs to the community" and "what belongs to the individual property owner." Robert Brauneis, The Foundation of Our Regulatory Takings Jurisprudence: The Meaning and Myth of Justice Holmes's Opinion in Pennsylvania Coal Co. v. Mahon, 106 YALE L.J. (forthcoming 1996) (manuscript at 50, on file with author). Professor Paul points out that in modern takings jurisprudence, the tests are related. The means/end test views the state's goal in light of the harm caused by the property owner: No other goal but harm prevention is envisioned as permissible. See Jeremy Paul, The Hidden Structure of Takings Law, 64 S. CAL. L. REV. 1393, 1433-92 (1991). I have no quarrel with the contention that the two tests are interrelated, and it may be that in practice they both lead to the same result, and are both reflecting the same underlying philosophy, values, or questions. But I am convinced that they are formally distinct: The articulated standards are different and require the court to consider different facts. Cf. Corwin, supra note 31, at 367 (describing the means/end and causation questions as separate issues in the range of inquiry under due process).
120. See, e.g., Lochner, 198 U.S. at 56 ("The act must have a more direct relation, as a means to an end, . . . before [it] can be held to be valid . . . ."); Powell, 127 U.S. at 683-84, 686 (finding a regulation constitutional if it bore a "real and substantial relation" to protecting the public health); Mugler, 123 U.S. at 661, 669 (stating that it is the courts' duty to invalidate statutes with no "real or substantial relation" to their purported legislative objects). For a typical example from state courts, see Health Dept. v. Rector of Trinity Church, 17 N.Y.S. 510, 515 (1892) ("No matter how plausible the professions of the statute, nor how benevolent in motive or beneficial in effect, to be a legitimate act of police power it must, if the public health be its ostensible object, exhibit some relation to that object and some tendency to promote it.").
121. Adkins, 261 U.S. at 550 (quoting Lochner, 198 U.S. at 61).
122. "[T]he mere assertion that the subject relates though but in a remote degree to the public health does not necessarily render the enactment valid. The act must have a more direct relation, as a means to an end . . . ." Lochner, 198 U.S. at 57. The Court also could make a searching inquiry into whether a business was "affected with the public interest" and thus could be regulated. See, e.g., Ribnik v. McBride, 277 U.S. 350, 355-57 (1928); Tyson & Brother, 273 U.S. at 430-43.
123. Adkins, 261 U.S. at 560. In fact, Justice Sutherland concluded that no statistics available at that time could show the proper connection because the only proof he was willing to accept would have to show higher wages during a depression. Id. As of 1923 there had never been both minimum wage laws and a depression.
124. Id. at 554-57, 560-61; see also Tyson & Brother, 273 U.S. at 442-43 ("It is not permissible to enact a law which, in effect, spreads an all-inclusive net for the feet of everybody on the chance that, while the innocent will surely be entangled in its meshes, some wrong-doers also may be caught.").
125. Adkins, 261 U.S. at 558; cf. Ribnik, 211 U.S. at 355-56 (holding that business can be regulated only "if conditions peculiar to the business under consideration" bear a "substantial and definite relation to the public interest"); Tyson & Brother, 273 U.S. at 438, 443 (same).
126. Adkins, 261 U.S. at 557-58; see also West Coast Hotel Co. v. Parrish, 300 U.S. 379, 406 (1937) (Sutherland, J., dissenting); Radice v. New York, 264 U.S. 292, 295 (1924). Similarly, in a number of other cases in the era, the Court held that an owner could not be forced to pay an amount greater than the benefit gained by the government action. See, e.g., Martin v. District of Columbia, 205 U.S. 135, 140 (1907) ("[T]he apportionment is to be limited to the benefit . . . ."); Norwood v. Baker, 172 U.S. 269, 278-79 (1898) (finding that special property assessments cannot exceed the value accruing to the owner from improvements); cf. Child Labor Tax Case, 259 U.S. 20, 29 (1922) (Argument for Defendant in Error) (arguing that a tax was an unconstitutional penalty in part because it was not proportionate to any activity). In both situations, the result was to prevent the government from taking the owner's property and redistributing it. Property could be taken only to pay for harm caused by the owner or to pay for a benefit enjoyed by the owners.
127. Lochner, 198 U.S. at 64.
128. See FREUND, supra note 54, at 705, 749-55; GILLMAN, supra note 22, at 61-99; WILLIAM D. GUTHRIE, LECTURES ON THE FOURTEENTH ARTICLE OF AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES 76, 106 (1898); HORWITZ, supra note 17, at 9-32; WILLIAM E. NELSON, THE FOURTEENTH AMENDMENT 176-81, 188-93, 197-99 (1988); Thomas M. Cooley, Limits to State Control of Private Business, 1878 PRINCETON REV. 233, 243-44; Grey, supra note 2, at 42-43; McCurdy, supra note 22, at 1004; Siegel, supra note 31, at 12-13 n.47; Sunstein, supra note 9, at 878.
129. Coppage v. Kansas, 236 U.S. 1, 18-19 (1915). Other cases raise the same theme. See, e.g., Block v. Hirsh, 256 U.S. 134, 163-67 (1921) (McKenna, J., dissenting) (arguing that without Fifth Amendment protections, the natural order is for government to gain ground and one class to become dominant over another); Adair v. United States, 208 U.S. 161, 175 (1908) (Harlan, J.) ("[T]he employer and the employé have equality of right, and any legislation that disturbs that equality is an arbitrary interference with the liberty of contract which no government can legally justify in a free land."); Holden v. Hardy, 169 U.S. 366, 398 (1898) ("The question in each case is whether the legislature has adopted the statute in exercise of a reasonable discretion, or whether its action be a mere excuse for an unjust discrimination, or the oppression, or spoliation of a particular class.v); Pollock v. Farmers' Loan & Trust Co., 157 U.S. 429, 596-597 (1895) (Field, J., concurring) (stating that an income tax law was unconstitutional because it was class legislation that burdens a citizen by reason of his wealth); see also Health Dept. v. Rector of Trinity Church, 17 N.Y.S. 510, 515-16 (1892) (holding that a law requiring water on every floor in a tenement was an unconstitutional taking because no health purpose was shown and the law was merely for benefit of tenants at the expense of landlords); Loan Assoc. v. Topeka, 87 U.S. (20 Wall.) 655, 664 (1874) ("To lay with one hand the power of government on the property of the citizen, and with the other to bestow it upon favored individuals . . . , is none the less a robbery."). A number of commentators have noted the Court's aversion to redistributive measures during this era. See TRIBE, supra note 31, at 570-73; Grey, supra note 2, at 43; HORWITZ, supra note 17, at 9-31; Siegel, Lochner Era Jurisprudence, supra note 16, at 21 n.90; Sunstein, supra note 9, at 877-79 n.27. Again, the assertion that many of the judges in this era opposed legislative efforts to redistribute wealth is not meant to suggest any position in the ongoing debate about the rationale for their decisions. See supra notes 19-22 and accompanying text.
130. Courts in the period used other tools besides means/end and cause/effect analysis under the Due Process Clause to prevent state redistribution of wealth. One example is the Commerce Clause, which the Court read narrowly to prevent federal regulation of the economy. See, e.g., Hammer v. Dagenhart, 247 U.S. 251, 276 (1918) (holding a statute prohibiting interstate commerce of goods created by child labor unconstitutional as exceeding the commerce power of Congress); United States v. E.G. Knight Co., 156 U.S. 1, 9-17 (1895) (holding that it was beyond the commerce power of Congress to prevent the acquisition of a manufacturing monopoly under the Sherman Act). See generally MCCLOSKEY, supra note 16, at 96-100 (describing the interpretation of the Commerce Clause in the Lochner era). This latter doctrinal aspect of the Lochner era may have reemerged. See United States v. Lopez, 115 S. Ct. 1624 (1995) (holding a federal statute invalid because it was outside Congress's power to regulate under the Commerce Clause).
131. See HORWITZ, supra note 17, at 27-30; Duncan Kennedy, Form and Substance in Private Law Adjudication, 89 HARV. L. REV. 1685, 1754-56 (1976); Siegel, Lochner Era Jurisprudence, supra note 16, at 65-66, 80-82, 86-88; see also Munn v. Illinois, 94 U.S. 113, 125 (1876) (stating that the consitutionally protected right of property comes from the common law).
132. See HORWITZ, supra note 17, at 27-30; Duncan Kennedy, Form and Substance in Private Law Adjudication, 89 HARV. L. REV. 1685, 1754-56 (1976); Siegel, Lochner Era Jurisprudence, supra note 16, at 65-66, 80-82, 86-88; see also Munn v. Illinois, 94 U.S. 113, 125 (1876) (stating that the consitutionally protected right of property comes from the common law).
133. See HORWITZ, supra note 17, at 27-30; Duncan Kennedy, Form and Substance in Private Law Adjudication, 89 HARV. L. REV. 1685, 1754-56 (1976); Siegel, Lochner Era Jurisprudence, supra note 16, at 65-66, 80-82, 86-88; see also Munn v. Illinois, 94 U.S. 113, 125 (1876) (stating that the consitutionally protected right of property comes from the common law).
134. See Hadacheck v. Sebastian, 239 U.S. 394, 410 (1915); Mugler v. Kansas, 123 U.S. 623, 660 (1887).
135. See Miller v. Schoene, 276 U.S. 272, 281 (1928) (upholding a law requiring the destruction of cedar trees to prevent the spread of disease to orchards); Village of Euclid v. Ambler Realty Co. 272 U.S. 365, 397 (1926) (upholding a zoning law); Hadacheck, 239 U.S. at 414 (upholding the prohibition of brick yards within described limits in the city); Reinman v. City of Little Rock, 237 U.S. 171, 180 (1915) (upholding the prohibition of stables in a residential area).
136. See Powell v. Pennsylvania, 127 U.S. 678, 686 (1888) (margarine); Mugler, 123 U.S. at 660 (liquor).
137. Muller v. Oregon, 208 U.S. 412, 423 (1908) (women); Holden v. Hardy, 169 U.S. 366, 398 (1898) (miners); see also Adkins v. Children's Hosp., 261 U.S. 525, 552 (1923) (explaining why maximum-hour protection for women and miners was constitutionally permissible).
138. Nebbia v. New York, 291 U.S. 502, 538 (1934) (milk); Dayton-Goose Creek Ry. Co. v. United States, 263 U.S. 456, 481 (1924) (railroads); Block v. Hirsh, 256 U.S. 135, 155-56 (1921) (rental housing); German Alliance Ins. Co. v. Lewis, 233 U.S. 389, 414 (1914) (fire insurance).
139. New State Ice Co. v. Liebmann, 285 U.S. 262, 273-80 (1932) (ice companies); Williams v. Standard Oil Co., 278 U.S. 235, 239-40 (1929) (gasoline); Ribnik v. McBride, 277 U.S. 350, 355 (1928) (employment agencies); Tyson & Brother v. Banton, 273 U.S. 418, 429 (1927) (theater tickets). See generally MCCLOSKEY, supra note 16, at 105. For a typical contemporary description of the line between permissible police power and impermissible invasions of property rights, see Block, 256 U.S. at 138-39 (Argument for Plaintiff in Error).
140. Some examples of contemporary literature describing regulations that the Court upheld in the Lochner era include Brown, supra note 16, at 945 n.11, and Charles Warren, The Progressiveness of the United States Supreme Court, 13 COLUM. L. REV. 294 (1913).
141. See supra note 16.
142. United States v. Carolene Products Co., 304 U.S. 144, 152 (1938). After the abandonment of Lochner-era jurisprudence, the Court, reviewing state regulations under the Due Process Clause of the Fourteenth Amendment, more explicitly developed different "levels" of means-ends analysis. Economic regulations have been subject since the late 1930s only to "rational basis" scrutiny, which basically asks whether any rational being could see a connection between the law (means) and any legitimate government interest (ends). Laws that involve either a "suspect classification" or a restriction of a "fundamental interest" are tested by "heightened" or "strict" scrutiny, which involves more rigorous judicial demands for "important" or "compelling" governmental objectives and for "substantial" or "narrowly tailored" instrumental relationships to such objectives. Rarely does a challenged law fail to pass rational basis scrutiny, just as almost never does one survive strict scrutiny. Michelman, supra note 4, at 1606 n.34. For further and far more detailed descriptions of the levels of scrutiny applied under the Due Process Clause and the doctrinal steps taken in developing this doctrine after 1937, see, for example, CURRIE, supra note 16, at 208-504; GUNTHER, supra note 18, at 472-75 (describing the Court's "hands-off" approach to economic legislation), 501-46 (discussing strict scrutiny of certain non-economic legislation); MCCLOSKEY, supra note 16, at 121-83; TRIBE, supra note 31.
143. MCCLOSKEY, supra note 16, at 125; see also Robert McCloskey, Economic Due Process and the Supreme Court: An Exhumation and Reburial, 1962 SUP. CT. REV. 34, 36.
144. MCCLOSKEY, supra note 16, at 125; see also Robert McCloskey, Economic Due Process and the Supreme Court: An Exhumation and Reburial, 1962 SUP. CT. REV. 34, 36.
145. 438 U.S. 104 (1978).
146. Id. at 124.
147. Id.
148. By my count, in the forty-two years from 1937 (the end of the Lochner era) until 1979 (the beginning of the Court's new takings jurisprudence) the Court never decided a regulatory takings claim in favor of the property owner. A few times the Court found a compensable taking from various nonregulatory government actions. See United States v. Sioux Nation of Indians, 448 U.S. 371 (1980) ("agreement" whereby the Sioux lost rights to their land); Griggs v. Allegheny County, 369 U.S. 84 (1962) (operation of an airport); Armstrong v. United States, 364 U.S. 40 (1960) (destruction of construction liens on navy boat hulls); United States v. Pewee Coal Co., 341 U.S. 114 (1951) (federal takeover of a coal mine); United States v. Gerlach Live Stock Co., 339 U.S. 725 (1950) (deprivation of riparian rights through construction of a dam); United States v. Causby, 328 U.S. 256 (1946) (take-off and landing of airplanes); United States v. Klamath & Moadoc Tribes of Indians, 304 U.S. 119 (1938) (treaty taking the land of Native American tribes). In none of these cases did the Court actually apply the Penn Central balancing test. See also Frank I. Michelman, Possession v. Distribution in the Constitutional Idea of Property, 72 IOWA L. REV. 1319, 1338 (1987) (stating that the balancing test "was never clearly applied in favor of property against a regulating government").
149. As a practical matter, if the regulation does not fall within the scope of this reformulation, it is almost never a taking.
150. Agins v. City of Tiburon, 447 U.S. 255, 262 (1980).
151. See Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1066 n.4 (1992) (Stevens, J., dissenting) (describing the Court's shift from finding takings only of land as a whole to finding takings of any real property interest). Various scholars have urged, deplored, or just commented on this approach to property in modern takings jurisprudence. See, e.g., EPSTEIN, supra note 8, at 58-74, 112-21, 252-53; Gregory S. Alexander, Takings, Narratives, and Power, 88 COLUM. L. REV. 1752 (1988); Michelman, supra note 4, at 1614-21; Radin, supra note 3; Jed Rubenfeld, Usings, 102 YALE L.J. 1077 (1993).
152. See Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1066 n.4 (1992) (Stevens, J., dissenting) (describing the Court's shift from finding takings only of land as a whole to finding takings of any real property interest). Various scholars have urged, deplored, or just commented on this approach to property in modern takings jurisprudence. See, e.g., EPSTEIN, supra note 8, at 58-74, 112-21, 252-53; Gregory S. Alexander, Takings, Narratives, and Power, 88 COLUM. L. REV. 1752 (1988); Michelman, supra note 4, at 1614-21; Radin, supra note 3; Jed Rubenfeld, Usings, 102 YALE L.J. 1077 (1993).
153. See Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1066 n.4 (1992) (Stevens, J., dissenting) (describing the Court's shift from finding takings only of land as a whole to finding takings of any real property interest). Various scholars have urged, deplored, or just commented on this approach to property in modern takings jurisprudence. See, e.g., EPSTEIN, supra note 8, at 58-74, 112-21, 252-53; Gregory S. Alexander, Takings, Narratives, and Power, 88 COLUM. L. REV. 1752 (1988); Michelman, supra note 4, at 1614-21; Radin, supra note 3; Jed Rubenfeld, Usings, 102 YALE L.J. 1077 (1993).
154. 458 U.S. 419 (1982).
155. See supra notes 82-84 and accompanying text.
156. Loretto, 458 U.S. at 425-41.
157. Id. at 441.
158. Id. at 435-36.
159. Id.
160. At least some lower courts have read the Court's cases as holding "that even if only a single element of an owner's 'bundle of property rights' is extinguished, there has been a regulatory taking." Manocherian v. Lenox Hill Hospital, 643 N.E.2d 479, 485 (N.Y. 1994); accord Brown v. United States, 73 F.3d 1100, 1104 (Fed. Cir. 1996) (holding that the right to sell land for the best price is part of the bundle of rights that cannot be taken without just compensation); see also Clem v. Christole, Inc., 548 N.E.2d 1180, 1183 (Ind. Ct. App. 1990) (stating that property includes "the right to acquire, possess, use, or dispose of [a physical object] without control or diminution").
161. 444 U.S. 164 (1979).
162. Id. at 179-80 (footnote omitted).
163. Id. at 180.
164. Id.
165. 483 U.S. 825 (1987).
166. Id. at 831, 832. Justice Scalia referred to the requirement that the Nollans allow people to cross their property as a permanent physical occupation, although unlike the landlord in Loretto, the Nollans were free to use, possess, and dispose of the same area. Justice Scalia made this distinction as a basis for holding that a limitation on the right to exclude is an automatic taking because the Court in Kaiser Aetna had not found physical invasions alone to be per se takings, and the Nollans' situation appeared the same. The situation in Nollan is better understood alongside the decision in Kaiser Aetna as resting on the importance of the right to exclude, and the nearly presumptive taking found when that right is abrogated. Arguably, the Court's decisions in PruneYard Shopping Center v. Robbins, 447 U.S. 74 (1980), and Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241 (1964), forbidding exclusion of certain groups from business establishments under the California Constitution and the Civil Rights Act, respectively, are inconsistent with Kaiser Aetna and Nollan. The Court has distinguished the two groups of cases because in the latter : situation the owner "had already opened his property to the general public." Nollan, 483 U.S. at 832 n.1 (referring to PruneYard).
167. 114 S. Ct. 2309 (1994).
168. Id. at 2320-21. The distinction that the Court drew between PruneYard and Nollan, see supra note 101, did not serve the Court in this case, however, because Mrs. Dolan had also already opened her property to the general public. Dolan, 114 S. Ct. at 2321. The Court claimed that PruneYard was not controlling, though, because the shopping center owner could adopt restrictions to minimize interference with commercial activity, but Mrs. Dolan could not. Id.
169. 464 U.S. 875, dismissing appeal from Fresh Pond Shopping Ctr., Inc. v. Rent Control Bd., 446 N.E.2d 1060 (Mass. 1983).
170. Id. at 878 (Rehnquist, J., dissenting from the dismissal of appeal).
171. 503 U.S. 519 (1992).
172. Id. at 528 (citing Justice Rehnquist's dissent in Fresh Pond as authority for the principle that a taking could result if a landowner was compelled to rent his property or to refrain in perpetuity from terminating a tenancy).
173. 481 U.S. 704 (1992).
174. Id. at 715. Irving found unconstitutional Congress' first effort to solve the problem of fractionation of Indian Lands, section 207 of the Indian Land Consolidation Act. The Ninth Circuit has also found Congress's most recent effort, amended section 207, to be a taking. Youpee v. Babbitt, 67 F.3d 194 (9th Cir. 1995), cert. granted, 116 S. Ct. 1874 (1996).
175. Irving, 481 U.S. at 716-17.
176. Kirby Forest Indus. v. United States, 467 U.S. 1, 15 (1984); see also Preseault v. ICC, 494 U.S. 1, 23 (1990) (O'Connor, J., concurring) (arguing that the Fifth Amendment protects from government interference a reversionary interest in a right of way).
177. 505 U.S. 1003 (1992).
178. Id. at 1029-32. The Court held in Lucas that the government could not prevent all economically valuable uses of land unless the common law would have prohibited them as nuisances or the uses would pose "grave threats to the lives and property of others." Id. at 1029 n.16.
179. 503 U.S. 519 (1992).
180. Id. at 526-29.
181. Id.
182. Id. at 528.
183. Id. at 526-28. The Court in Yee found support in Fresh Pond, Nollan, and Florida Power. Then-Justice Rehnquist in Fresh Pond contended that refusing to permit the eviction or demolition of residential rental housing to allow use of the land as a parking lot was to "deny appellant use of its property," and was consequently a taking. Fresh Pond Shopping Ctr., Inc. v. Callahan, 464 U.S. 875, 877 (1983) (Rehnquist, J., dissenting from the dismissal of appeal). The Court in FCC v. Florida Power Corp., 480 U.S. 245 (1987), faced essentially the same issue as it had in Yee five years earlier. Florida Power concerned the constitutionality of an FCC order, pursuant to the Pole Attachments Act, setting the rates utilities could charge cable television companies for using their poles. The Court distinguished the case from Loretta because the Pole Attachments Act did not "give[ ] cable companies any right to occupy space on utility poles, or prohibit[ ] utility companies from refusing to enter into attachment agreements with cable operators." Id. at 251. The appellate court had found that as a practical matter the utilities could not cease providing use of their property to the cable companies. Id. at 251 n.6. The Court held, however, that Florida Power had not shown that it was forbidden from going out of the business, and the Court left open the question whether that situation would be a per se taking under the reasoning of Loretto. Id.
184. See, e.g., Aspen-Tarpon Springs Ltd. v. Stuart, 635 So.2d 61 (Fla. Dist. Ct. App. 1994); GTE Northwest, Inc. v. Public Util. Comm'n, 900 P.2d 495, 503-04 (Or. 1995). Other courts have held that laws preventing eviction, at least in some circumstances, violate the Takings Clause for the same reason. See Ross v. City of Berkeley, 655 F. Supp. 820, 838-39 (N.D. Cal. 1987); Manocherian v. Lenox Hill Hosp., 643 N.E.2d 479 (N. Y. 1994); Seawall Associates v. City of New York, 542 N.E.2d 1059, 1063-65 (N.Y. 1989); see also Griffin Dev. Co. v. City of Oxnard, 703 P.2d 339, 351-52 (Cal. 1985) (Mosk, J., dissenting) (arguing that a condominium conversion law cannot constitutionally force an owner to stay in the rental business).
185. Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1031 (1992); Nollan v. California Coastal Comm'n, 483 U.S. 825, 833-34 n.2 (1987); Keystone Bituminous Coal Ass'n v. DeBenedicts, 480 U.S. 470, 512, 516 (1987) (Rehnquist, J., dissenting) (stating that the government cannot prevent essential or beneficial uses); Penn Cent. Transp. Co. v. New York, 438 U.S. 104, 145 (1978) (Rehnquist, J. dissenting) (arguing that prohibiting cattle grazing would be a taking because it prevented a "legal and essential" use).
186. See Nollan, 483 U.S. at 833-34 n.2; see also Lucas, 505 U.S. at 1020 n.8 (noting the importance of "developmental uses"); MacDonald, Sommer & Frates v. County of Yolo, 477 U.S. 340, 352-53 (1986) (suggesting the possibility that the right to build is a protected property right under the Takings Clause); Williamson County v. Hamilton Bank, 473 U.S. 172, 190-91 n.12 (1985) (same).
187. Dolan v. City of Tigard, 114 S. Ct. 2309 (1994).
188. Id. at 2313-14.
189. Id. at 2314.
190. 447 U.S. 255 (1980).
191. Id. at 260. The Court relied for support on Nectow v. Cambridge, 277 U.S. 183 (1928), a Lochner-era challenge to a zoning ordinance under the Fourteenth Amendment's Due Process Clause. Commentators have questioned why the Court incorporated this due process requirement into takings analysis when it was always possible for an aggrieved landowner to bring an action under both a due process and a takings theory. See, e.g., Richard Epstein, Takings: Descent and Resurrection, 1987 SUP. CT. REV. 1, 5; Andrea L. Peterson, The Takings Clause: In Search of Underlying Principles (pt. 1), 77 CAL. L. REV. 1299, 1328-29 (1989).
192. Id. at 260. The Court relied for support on Nectow v. Cambridge, 277 U.S. 183 (1928), a Lochner-era challenge to a zoning ordinance under the Fourteenth Amendment's Due Process Clause. Commentators have questioned why the Court incorporated this due process requirement into takings analysis when it was always possible for an aggrieved landowner to bring an action under both a due process and a takings theory. See, e.g., Richard Epstein, Takings: Descent and Resurrection, 1987 SUP. CT. REV. 1, 5; Andrea L. Peterson, The Takings Clause: In Search of Underlying Principles (pt. 1), 77 CAL. L. REV. 1299, 1328-29 (1989).
193. Id. at 260. The Court relied for support on Nectow v. Cambridge, 277 U.S. 183 (1928), a Lochner-era challenge to a zoning ordinance under the Fourteenth Amendment's Due Process Clause. Commentators have questioned why the Court incorporated this due process requirement into takings analysis when it was always possible for an aggrieved landowner to bring an action under both a due process and a takings theory. See, e.g., Richard Epstein, Takings: Descent and Resurrection, 1987 SUP. CT. REV. 1, 5; Andrea L. Peterson, The Takings Clause: In Search of Underlying Principles (pt. 1), 77 CAL. L. REV. 1299, 1328-29 (1989).
194. 483 U.S. 825 (1987).
195. For examples in which the Court appeared to equate the "substantially advance" requirement with the rationality standard of post-Lochner substantive due process, see San Diego Gas & Electric Co. v. City of San Diego, 450 U.S. 621 (1981); United States v. Bayview Homes, 474 U.S. 121 (1980); Agins, 447 U.S. at 261.
196. Nollan, 483 U.S. at 837.
197. Id. at 838 (accepting arguendo that a regulation substantially advances a governmental interest if "it is reasonably related to the public need or burden that the Nollans' new house creates or to which it contributes"). The Court also remarked: If the Nollans were being singled out to bear the burden of California's attempt to remedy these problems, although they had not
198. 114 S. Ct. 2309 (1994); see supra text accompanying notes 122-24 (setting out the facts of Dolan).
199. Dolan, 114 S. Ct. at 2316-17.
200. Brief for Petitioner at 8-9, Dolan (No. 93-518).
201. Nollan, 483 U.S. at 837; see also Dolan, 114 S. Ct. at 2316-17 (describing this as the holding in Nollan).
202. See Dolan, 114 S. Ct. at 2317 (stating that the initial inquiry in a takings challenge to a permit condition is whether an "essential nexus" exists between the "legitimate state interest" and the condition); Nollan, 483 U.S. at 838 (declining to decide how close a "fit" the Constitution requires, on the ground that "this case does not meet even the most untailored standards"). For examples of the scholarship see Norman Karlin, Back to the Future: From Nollan to Lochner, 17 Sw. U. L. REV. 627, 630 (1988); Jerold S. Kayden, Land-Use Regulations, Rationality and Judicial Review: The RSVP in the Nollan Invitation (pt. 1), 23 URB. LAW. 301 (1991); Lawrence, supra note 7, at 248-64; Michelman, supra note 4, at 1605-08; Lawrence W. Andrea, Comment, Trespass at High Tide: The Supreme Court Gives Heightened Scrutiny to a State-Imposed Easement Requirement: Nollan v. California Coastal Commission, 54 BROOK. L. REV. 991 (1988).
203. See Dolan, 114 S. Ct. at 2317 (stating that the initial inquiry in a takings challenge to a permit condition is whether an "essential nexus" exists between the "legitimate state interest" and the condition); Nollan, 483 U.S. at 838 (declining to decide how close a "fit" the Constitution requires, on the ground that "this case does not meet even the most untailored standards"). For examples of the scholarship see Norman Karlin, Back to the Future: From Nollan to Lochner, 17 Sw. U. L. REV. 627, 630 (1988); Jerold S. Kayden, Land-Use Regulations, Rationality and Judicial Review: The RSVP in the Nollan Invitation (pt. 1), 23 URB. LAW. 301 (1991); Lawrence, supra note 7, at 248-64; Michelman, supra note 4, at 1605-08; Lawrence W. Andrea, Comment, Trespass at High Tide: The Supreme Court Gives Heightened Scrutiny to a State-Imposed Easement Requirement: Nollan v. California Coastal Commission, 54 BROOK. L. REV. 991 (1988).
204. See Dolan, 114 S. Ct. at 2317 (stating that the initial inquiry in a takings challenge to a permit condition is whether an "essential nexus" exists between the "legitimate state interest" and the condition); Nollan, 483 U.S. at 838 (declining to decide how close a "fit" the Constitution requires, on the ground that "this case does not meet even the most untailored standards"). For examples of the scholarship see Norman Karlin, Back to the Future: From Nollan to Lochner, 17 Sw. U. L. REV. 627, 630 (1988); Jerold S. Kayden, Land-Use Regulations, Rationality and Judicial Review: The RSVP in the Nollan Invitation (pt. 1), 23 URB. LAW. 301 (1991); Lawrence, supra note 7, at 248-64; Michelman, supra note 4, at 1605-08; Lawrence W. Andrea, Comment, Trespass at High Tide: The Supreme Court Gives Heightened Scrutiny to a State-Imposed Easement Requirement: Nollan v. California Coastal Commission, 54 BROOK. L. REV. 991 (1988).
205. See Dolan, 114 S. Ct. at 2317 (stating that the initial inquiry in a takings challenge to a permit condition is whether an "essential nexus" exists between the "legitimate state interest" and the condition); Nollan, 483 U.S. at 838 (declining to decide how close a "fit" the Constitution requires, on the ground that "this case does not meet even the most untailored standards"). For examples of the scholarship see Norman Karlin, Back to the Future: From Nollan to Lochner, 17 Sw. U. L. REV. 627, 630 (1988); Jerold S. Kayden, Land-Use Regulations, Rationality and Judicial Review: The RSVP in the Nollan Invitation (pt. 1), 23 URB. LAW. 301 (1991); Lawrence, supra note 7, at 248-64; Michelman, supra note 4, at 1605-08; Lawrence W. Andrea, Comment, Trespass at High Tide: The Supreme Court Gives Heightened Scrutiny to a State-Imposed Easement Requirement: Nollan v. California Coastal Commission, 54 BROOK. L. REV. 991 (1988).
206. See Dolan, 114 S. Ct. at 2317 (stating that the initial inquiry in a takings challenge to a permit condition is whether an "essential nexus" exists between the "legitimate state interest" and the condition); Nollan, 483 U.S. at 838 (declining to decide how close a "fit" the Constitution requires, on the ground that "this case does not meet even the most untailored standards"). For examples of the scholarship see Norman Karlin, Back to the Future: From Nollan to Lochner, 17 Sw. U. L. REV. 627, 630 (1988); Jerold S. Kayden, Land-Use Regulations, Rationality and Judicial Review: The RSVP in the Nollan Invitation (pt. 1), 23 URB. LAW. 301 (1991); Lawrence, supra note 7, at 248-64; Michelman, supra note 4, at 1605-08; Lawrence W. Andrea, Comment, Trespass at High Tide: The Supreme Court Gives Heightened Scrutiny to a State-Imposed Easement Requirement: Nollan v. California Coastal Commission, 54 BROOK. L. REV. 991 (1988).
207. For an explanation of the levels of scrutiny applied to different regulations, see supra note 80.
208. Nollan, 438 U.S. at 834 n.3; see also Michelman, supra note 4, at 1607-08 ("What is even more striking is that the Court expressly endorsed a form of semi-strict or heightened judicial scrutiny of regulatory means-ends relationships in the course of invalidating, as a taking, the Commission's conditional regulatory imposition on the Nollans.").
209. 503 U.S. 519, 534 (1992).
210. Their theory was that subsequent purchasers received no protection from the ordinance because when they bought the mobile home they would pay a sales premium equal to the capitalized value of the difference between controlled rent and uncontrolled rent. Brief for Petitioner at 27, Yee (No. 90-1947).
211. See Yee, 503 U.S. at 526-31.
212. Id. at 530.
213. This is so for two reasons. First, the purported state interest was to protect current mobile home owners from escalating rent increases. Brief for Respondent at 39, Yee (No. 90-1947). No one disputed that the Escondido rent regulation furthered that interest. Cf. Azul Pacifico Inc. v. City of Los Angeles, 948 F.2d 575, 583 (9th Cir. 1991) (finding mobile home rent regulation unconstitutional but agreeing that it furthered the state's interest in protecting current mobile home owners). The Court could only find that the regulation did not substantially advance the state interest if it redefined the state interest as protecting both current and future mobile home owners. Second, even if the Court did define the state interest as protecting future mobile home owners, the city argued that the ordinance would protect future mobile home owners as well because they would benefit from protection against excess rent increases when they became owners. Brief for Respondent at 40-41, Yee. This is clearly a plausible contention: Price stability is a well-recognized value, and this ordinance would provide rent stability to future tenants. Thus, the ordinance was at least rationally related even to the Court's broadly defined state interest.
214. Dolan v. City of Tigard, 114 S. Ct. 2309, 2315 (1994).
215. Id. at 2317 (stating that the first step in the analysis is to determine whether such an "essential nexus" exists).
216. Id. at 2317-18 (stating that the legitimacy of the state interest and its nexus with the permit condition were "obvious").
217. Id. at 2320.
218. See, e.g., Sarah Long, Note, Tipping the Scales for the Private Property Owner: Dolan v. City of Tigard, 25 STETSON L. REV. 213, 249 (1995); Theodore J. Boutrous Jr., The Supreme Court Remembers Property Rights, WALL ST. J., June 29, 1994, at A17; Richard Epstein & William Mellor, Perspective: Reining in the Land Use Planners, CHI. TRIB., July 22, 1993, at 23. A contrary interpretation of this sentence is possible, and in my view, more likely. According to the Court, Justice Stevens was claiming, in dissent, that because the permit limitation could be considered a business regulation it was presumptively constitutional. The Chief Justice responded that simply describing a regulation as "business" does not immunize it from constitutional scrutiny; such regulations can still violate the First, Fourth, and Fifth Amendments. Dolan, 114 S. Ct. at 2320. It is of course possible that this sentence will be taken to require means/end scrutiny similar to that of gender-or even race-based classifications under the Due Process Clause, but it seems implausible that the Court intended this off-hand sentence to decide that issue.
219. See, e.g., Sarah Long, Note, Tipping the Scales for the Private Property Owner: Dolan v. City of Tigard, 25 STETSON L. REV. 213, 249 (1995); Theodore J. Boutrous Jr., The Supreme Court Remembers Property Rights, WALL ST. J., June 29, 1994, at A17; Richard Epstein & William Mellor, Perspective: Reining in the Land Use Planners, CHI. TRIB., July 22, 1993, at 23. A contrary interpretation of this sentence is possible, and in my view, more likely. According to the Court, Justice Stevens was claiming, in dissent, that because the permit limitation could be considered a business regulation it was presumptively constitutional. The Chief Justice responded that simply describing a regulation as "business" does not immunize it from constitutional scrutiny; such regulations can still violate the First, Fourth, and Fifth Amendments. Dolan, 114 S. Ct. at 2320. It is of course possible that this sentence will be taken to require means/end scrutiny similar to that of gender-or even race-based classifications under the Due Process Clause, but it seems implausible that the Court intended this off-hand sentence to decide that issue.
220. Chicago Bd. of Realtors, Inc. v. City of Chicago, 819 F.2d 732, 742 (7th Cir. 1987). The judges could find no basis for invalidating the ordinance under this theory, however, because the landlords had failed to bring a Fifth Amendment takings claim. Id. at 745.
221. Hall v. City of Santa Barbara, 833 F.2d, 1270, 1281 n.26 (9th Cir. 1986) (instructing the lower court to consider the issue on remand).
222. Seawall Assoc. v. City of New York, 542 N.E.2d 1059, 1068-69 (N.Y. 1989) (finding that the connection between a ban on converting, destroying, or warehousing single-room occupancy units and the "highly complex social problem of homelessness is indirect and at best conjectural"); see also, e.g., Surfside Colony Ltd. v. California Coastal Comm'n, 277 Cal. Rptr. 371, 374 n.10, 377-78 (Cal. Ct. App. 1991) (interpreting Nollan to require heightened scrutiny); McElwain v. County of Flathead, 811 P.2d 1267, 1270 (Mont. 1991) (interpreting Nollan to require that a regulation substantially advance a legitimate interest and utilize the least restrictive means); Manocherian v. Lenox Hill Hosp., 643 N.E.2d 479, 483-85 (N.Y. 1994) (holding that a statute that required private landlords to offer renewal leases to a hospital that subleased the apartments to its employees failed to advance a legitimate general welfare interest); Steven J. Lemon et al., The First Applications of the Nollan Nexus Test: Observations and Comments, 13 HARV. ENVT. L. REV. 585, 597 n.50 (1989) (listing cases applying a closer means/end scrutiny after Nollan).
223. Seawall Assoc. v. City of New York, 542 N.E.2d 1059, 1068-69 (N.Y. 1989) (finding that the connection between a ban on converting, destroying, or warehousing single-room occupancy units and the "highly complex social problem of homelessness is indirect and at best conjectural"); see also, e.g., Surfside Colony Ltd. v. California Coastal Comm'n, 277 Cal. Rptr. 371, 374 n.10, 377-78 (Cal. Ct. App. 1991) (interpreting Nollan to require heightened scrutiny); McElwain v. County of Flathead, 811 P.2d 1267, 1270 (Mont. 1991) (interpreting Nollan to require that a regulation substantially advance a legitimate interest and utilize the least restrictive means); Manocherian v. Lenox Hill Hosp., 643 N.E.2d 479, 483-85 (N.Y. 1994) (holding that a statute that required private landlords to offer renewal leases to a hospital that subleased the apartments to its employees failed to advance a legitimate general welfare interest); Steven J. Lemon et al., The First Applications of the Nollan Nexus Test: Observations and Comments, 13 HARV. ENVT. L. REV. 585, 597 n.50 (1989) (listing cases applying a closer means/end scrutiny after Nollan).
224. See, e.g., Lochner v. New York, 198 U.S. 45, 58 (1905) ("[T]here is, in our judgment, no reasonable foundation for holding [a law limiting working hours to ten hours a day or sixty hours a week] to be necessary or appropriate as a health law to safeguard the public health or the health of the [employees]."); Health Dept. v. Rector of Trinity Church, 17 N.Y.S. 510, 515-16 (1892) (holding that a New York law requiring a landlord to furnish water in a tenement house was a taking because "[t]here is no evidence, nor can the court judicially know, that the presence and distribution of water on the several floors will be conducive to the health of the occupants").
225. See Paul, supra note 59, at 1398-99; Peterson, supra note 126, at 1340.
226. 153 438 U.S. 825 (1987).
227. Id. at 837.
228. Id. at 850-52 (Brennan, J., dissenting). Another example of the Court framing the interests served by the legislation more narrowly than the government did is Yee v. City of Escondido, 503 U.S. 519 (1992). See supra note 142 and accompanying text.
229. See, e.g., Williamson v. Lee Optical Co., 348 U.S. 483, 487 (1955) (relying on hypothetical facts and reasons to uphold the legislation); United States v. Carolene Products, 304 U.S. 144, 152 (1938) (holding that a law is constitutional if any facts either known or reasonably inferred could support the legislative judgment).
230. The Court's twist on the means/end scrutiny seems to come from a reluctance to clarify which government purposes are illegitimate. Requiring a specific means/ end nexus is only meaningful if some ends are illegitimate. See Sunstein. supra note 9, at 822-29. If regulating for any purpose is constitutional, there is no need to inquire further. After all, if all purposes are legitimate, even if the means do not further the purpose stated by the government, they further some equally good one. For example, in Nollan, the Court held that the constitutional problem with the lack of nexus between the condition and the stated government purpose is that it "converts that purpose to something other than what it was. The purpose then becomes, quite simply, the obtaining of an easement to serve some valid governmental purpose but without payment of compensation." 483 U.S. at 837. The Court thinks it goes without saying that the "obtaining of an unpaid easement to serve some valid governmental purpose" is unconstitutional. But why? Earlier the Court agreed that obtaining an easement for the governmental purpose of increasing visual access was constitutional. Id. at 836. Why would obtaining an easement for some other "valid governmental purpose" transform the easement condition into unconstitutionality? Professor Paul suggests, and I agree, that the reason is these other "valid governmental purposes" are, in the Court's view, not really valid. The only purpose for the permit condition that passes takings muster in the Court's view is one that prevents the harm of beachfront building. See Paul, supra note 59. Under this interpretation, the Court's means/end scrutiny, at least as applied in Nollan, works just as it did in the Lochner era. It does not just impose a pleading requirement designed to catch sloppy government briefing, but is intended to ascertain whether the government regulation actually prevents a harm.
231. Although this same analysis appeared in the Lochner-era substantive due process cases, some commentators have argued that this meaning more closely aligns with the articulated principles underlying the Takings Clause. See John J. Costonis, Presumptive and Per Se Takings: A Decisional Model for the Taking Issue, 58 N.Y.U. L. REV. 465, 488 (1983) (arguing that takings cases differ from "conventional" due process jurisprudence by emphasizing the relation between the governmental action's goals and the burdened property's use, rather than the relation between the action's goals and its means); Kmiec, supra note 8, at 1638-40, 1651-54 (arguing that the Takings Clause requires the Court to determine whether the regulation is preventing a harm created by the property owner).
232. 483 U.S. at 835 n.4.
233. Examples of cases in which state court interpreted Nollan as requiring a close connection between the public burden created by the development and the government regulation include Surfside Colony v. California Coastal Comm'n, 277 Cal. Rptr. 371, 375-76 (Ct. App. 1991); Rohn v. City of Visalia, 264 Cal. Rptr. 319, 326 (Ct. App. 1989); and Luxembourg Group v. Snohomish County, 887 P.2d 446, 448 (Wash. Ct. App. 1995).
234. 485 U.S. 1 (1988) (considering a rent control scheme that allowed reduction in the maximum available rent on the grounds of the tenant's hardship).
235. Id. at 20 (Scalia, J., joined by O'Connor, J., concurring in part and dissenting in part). The Justices concurred with respect to the disposition of petitioner's due process and equal protection claims.
236. Id.
237. Id. at 21.
238. Dolan v. City of Tigard, 114 S. Ct. 2309, 2317 (1994) (holding that takings analysis requires a sufficient connection between the impact of the property owner's proposed building plans and the conditions the city placed on granting a building permit).
239. Id. at 2318-20. The Court found support in its prior case law for this relationship not in prior takings cases using the "substantially advance" test, but in Nollan and the "unconstitutional conditions" doctrine. The implications of the unconstitutional conditions doctrine in this context are discussed infra notes 196-203 and accompanying text.
240. Dolan, 114 S. Ct. at 2319. After reviewing state court decisions, the Court settled on a "rough proportionality" requirement rather than a "directly proportional" or "reasonably related" requirement. The Court explained that this did not involve "precise mathematical calculation but . . . the city must make some sort of individualized determination that the required dedication is related both in nature and extent to the impact of the proposed development." Id. at 2319-20.
241. See, e.g., Keystone Bituminous Coal Ass'n v. DeBenedictis, 480 U.S. 470, 491 n.21 (1987) (stating that the Takings Clause does not require the court to calculate whether an individual is harmed more than benefitted by the regulation).
242. Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992). This is an example of a broader trend, noticed by Professor Siegel, of the "survival of the Lochner era technique of using the traditions of the Anglo-American people (as encapsulated in the common law) to define the Constitution's vague protections of civil liberty." Siegel, Lochner Era Jurisprudence, supra note 16, at 111 n.548.
243. The Court's decision in Nollan also makes the most sense understood as limiting the legitimate government interests to preventing harm. See supra note 157.
244. This difference is actually a fairly new revelation. Until 1987 and the Court's decision in First English Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304 (1987), many believed that the proper remedy for a taking without just compensation was an injunction against enforcement of the regulation, not an order to pay compensation. See, e.g., Brief for the United States Amicus Curiae, First English (No. 85-1199); Agins v. City of Tiburon, 598 P.2d 25, 29-31 (Cal. 1979), aff'd on other grounds, 447 U.S. 255 (1980).
245. The Court has repeatedly stated that in takings cases it is not deciding whether the government can do some action; it is merely deciding whether the government can require certain people to pay for that action. See, e.g., Preseault v. ICC, 494 U.S. 1, 11 (1990); id. at 23 (O'Connor, J., concurring); Hodel v. Virginia Surface Mining & Reclamation Ass'n, 452 U.S. 264, 297 n.40 (1981).
246. See HORWITZ, supra note 17, at 27-29; Siegel, Lochner Era Jurisprudence, supra note 16, at 58-59.
247. See, e.g., Delaware, Lackawanna & W. R.R. Co. v. Town of Morristown, 276 U.S. 182, 193 (1928): The police power may be and frequently it is exerted to effect a purpose or consummate an enterprise in the public interest that requires the taking of private property; but, whatever the purpose or the means employed to accomplish it, the owner is entitled to compensation for what is taken from him. See also Pennsylvania Coal Co. v. Mahon 260 U.S. 393, 413 (1922) (holding that a law was a violation of due process, and adding that if the government wished to regulate mine subsidence it needed to pay compensation); Missouri Pac. Ry. v. Nebraska, 217 U.S. 196, 208 (1910) (finding a law "unconstitutional . . . because it [did] not provide indemnity for what it require[d]"); Louisville & Nashville R.R. Co. v. Central Stock Yards Co., 212 U.S. 132, 144 (1909) (holding, in the absence of a provision "securing due compensation for their use," that a provision requiring a railroad to permit other railroads to use its cars and switching facilities was unconstitutional).
248. 243 U.S. 188 (1916).
249. Id. at 202.
250. See supra notes 48-53 and accompanying text (discussing the rate cases).
251. See Lake Shore &Michigan S. Ry. v. Smith, 173 U.S. 684 (1899); Smyth v. Ames, 169 U.S. 466 (1898).
252. This conclusion is logical given the Court's conception of its role in due process analysis: deciding whether a particular regulation fell into the category of taking property without compensation or into the category of legitimate exercise of the police power. If compensation was offered, the regulation would not fall on the wrong side of the line. There are some cases from this era in which this analysis makes little sense. It is hard to see how the due process violation of a state statute prohibiting "yellow dog" contracts, see Adair v. United States, 208 U.S. 161 (1908), could be corrected by compensation. A state could perhaps calculate how much it cost an employer to have employees that refused to agree never to join a labor union, but the Court's opinion reads as if this law is simply not within the functions of government independent of the financial burden. Id. at 174.
253. See, e.g., Louisville Joint Stock Land Co. v. Radford, 295 U.S. 555, 596, 602 (1935) (stating that eminent domain is available to effectuate an act held void under the Fifth Amendment); Curtin v. Benson, 222 U.S. 78, 86 (1911) (holding that a regulation on the use of land is "practically to take [the owner's] property away, and to do that is beyond the power even of sovereignty, except by proper proceedings to that end"); Martin v. District of Columbia, 205 U.S. 135, 139 (1907) (explaining that a certain height limit on buildings can be required without compensation, but if the limit is too low then compensation is required). Edward Corwin explains the distinction for the early courts as follows: [A] distinction was drawn . . . between regulation on the one hand, which was the true function of the police power, and on the other hand destruction, which lay without it. True the state could abate a nuisance, but only in those cases in what at the common law a private person, "taking the law into his own hands," could do so. If it would go farther than this, the state could rely only upon its power of eminent domain and, by the doctrine of consequential damages, must render adequate compensation for any valuable use abolished by its action. Corwin, supra note 31, at 378-79. Justice Brewer, for example, an adamant opponent of the Court's decision upholding rate regulation in Munn v. Illinois, 94 U.S. 113 (1876), never questioned the propriety of the government controlling rates by condemning the railroads and paying the owners just compensation. Siegel, Understanding the Lochner Era, supra note 16, at 216 n.130. For an example of the constitutional importance of which label was attached to the government's authority for its actions during the Lochner era, see Mugler v. Kansas, 123 U.S. 623, 668-69 (1887). The power of eminent domain was more limited during the Lochner era than it is now because the Court permitted the state to exercise the power of eminent domain only for public use - a requirement that seemingly no longer provides any limitation. See Hawaii Hous. Auth. v. Midkiff, 467 U.S. 229, 240 (1984). However, even in that era the power was a broad one. See, e.g., Fallbrook Irrigation District v. Bradley, 164 U.S. 112, 158-64 (1896) (discussing the scope of public use requirement). For a description of the cases (as well as the author's opposition to a broad reading of public use) see COOLEY, supra note 29, §§ 61-69.
254. See Note, The Constitutionality of Zoning Laws, 12 U. PA. L. REV. 421, 421-22 (1924).
255. The categorization of the state government's source of power means little now. The Court no longer considers there to be any constitutional ramifications to labelling a law as promulgated under an exercise of the state's police powers. See Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1024-30 (1992). And the Court appears no longer willing to spend its time ascertaining whether some action is within the state or local government's power. See National R.R. Passenger Corp. v. Boston & Me. Corp., 503 U.S. 407, 422-23 (1992); Midkiff, 467 U.S. at 239-40.
256. First English Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304, 321 (1987) (describing these as the three options available to a government once a court determines that a taking has occurred). To a certain extent, governments are more limited now. Today if the law is invalidated as a violation of the Takings Clause, the government could still have to pay compensation for the period of time the regulation was in force. See id.
257. This is not to say that there is no reason to prefer analysis under the Takings Clause to analysis under the Due Process Clause. Many have argued that there are persuasive textual or historical bases for reviewing regulations under the Takings Clause rather than due process. See, e.g., FRED BOSSELMAN ET AL., THE TAKING ISSUE 105-14 (1973); EPSTEIN, supra note 8, at 214, 280-81; Kmiec, supra note 8; Sunstein, supra note 9, at 890-91, 912-13; Treanor, supra note 36. The point here is simply that the practical result of the Court's decision is the same.
258. Lucas is an example. Having to pay Mr. Lucas depleted the Council's budget. It responded by selling the property without the regulation. See H. Jane Lehman, Accord Ends Fight Over Use of Land; Property Rights Activists Gain in S.C. Case, WASH. POST, July 17, 1993, at E01. This is also the purpose advocated by many who propose "takings" legislation, and the fear of many who oppose it: The government will not pay property owners; instead it will regulate less. See, e.g., EPSTEIN, supra note 8, at 23; Richard A. Epstein, A Takings Exception, WASH. POST, February 23, 1994, at A17; Kenneth Harney, New Rights For Property Owners?, SACRAMENTO BEE, March 12, 1995, at H4; David Mahony, Big Giveaway in Congress Disguised as Property Rights, BUFFALO NEWS, January 7, 1996, at 9F; Peter Overby, The Politics of Mine-ing, COMMON CAUSE MAG., Summer 1994, at 9; Dale Sirbak, Property Rights Bills will Hurt the Public, INTELLIGENCER J., July 14, 1995 (editorial); Calvin Woodward, GOP Trying to Draw Line on Property Rights; Candidates Say, Takings Bill Restores Private Owners' Power, LEGAL INTELLIGENCER, January 4, 1996, at 7.
259. See, e.g., TENN. CODE ANN. §§ 12-1-201 to 12-1-206 (West Supp. 1994); Recent Legislation, 108 HARV. L. REV. 519 (1994) (describing state laws); Neil R. Peirce, Plans to Compensate for Regulatory Takings Lose Steam, SACRAMENTO BEE, January 13, 1996, at B7 (describing state laws prohibiting application of any regulation if it would take property). Courts apparently also more often invalidate laws than require compensation. See Underkuffler, supra note 35, at 144 & n.96; see also, e.g., McElwain v. County of Flathead, 811 P.2d 1267, 1271 (Mont. 1991) (holding that if a regulation is found to be a taking, the government may discontinue the regulation rather than continuing the regulation and paying compensation).
260. See EPSTEIN, supra note 8; TRIBE, supra note 31, at 606 n.6; Frank I. Michelman, Property as a Constitutional Right, 38 WASH. & LEE L. REV. 1097, 1111 (1981).
261. See Michelman, supra note 4, at 1608. The potential for heightened means/end scrutiny to allow judges to impose their own political views is one of the standard critiques against heightened scrutiny of economic legislation. See, e.g., Dolan v. City of Tigard, 114 S. Ct. 2309, 2327 (1994) (Stevens, J., dissenting); Learned Hand, Due Process of Law and the Eight-Hour Day, 21 HARV. L. REV. 495, 500-01 (1908); Douglas W. Kmiec & John O. McGinnis, The Contract Clause: A Return to the Original Understanding, 14 HASTINGS CONST. L.Q. 525, 553 (1987).
262. This is also true when the issue is not whether the owner causes harm but whether the owner has sufficiently benefitted. If the government cannot charge anything greater than the benefits enjoyed by the owner then the government action is not redistributive. Instead, the government is receiving a fair price for a benefit it has conferred. Justice Scalia has suggested that a regulation would be constitutionally permissible under the cause/effect test if the owner benefitted disproportionately from the problem. Pennell v. City of San Jose, 485 U.S. 1, 20 (1988) (Scalia, J., concurring in part and dissenting in part). If accepted by the Court and read broadly, this test would eliminate much of the force of the cause/effect limitation. Arguably, the Nollans benefitted disproportionately from the public's lack of access to the public beaches, landlords benefit disproportionately from scarcity, Mr. Lucas benefitted disproportionately from government action to save the beaches, and so on. As with the Court's application of means/ends scrutiny, it reduces to how courts define the problem the legislation is meant to correct. If courts read the benefit exception broadly, then little legislation will be unconstitutional. It seems unlikely that interpretation is what Justice Scalia intended.
263. An example of the application of the "substantially advance" test and the broad definition of property to prevent regulation (that prior to the 1980s would almost certainly have been found constitutional) is Clem v. Christole, Inc., 548 N.E.2d 1180 (Ind. Ct. App. 1990). In Clem the court held that a zoning ordinance permitting developmentally disabled persons to live in group homes in residential subdivisions with single-family-only covenants was a taking. The court found that the ordinance did not substantially advance a legitimate state interest as required by Nollan. Id. at 1185. The court also found that the ordinance was a per se taking under the rationale of Nollan that a regulation requiring an easement was like a permanent physical occupation. The court reasoned that because the group home was a permanent structure in the subdivision, and owners had lost their right to exclude it, it too was like a permanent physical occupation, and thus a per se taking.
264. Adkins v. Children's Hosp., 261 U.S. 525, 557-58 (1923).
265. For a general description of common zoning laws see ROBERT ANDERSON, AMERICAN LAW OF ZONING §§ 1, 9 (2d ed. 1976); CHARLES M. HAAR & MICHAEL A. WOLF, LAND-USE PLANNING 220-55 (4th ed. 1989).
266. For a general description of common zoning laws see ROBERT ANDERSON, AMERICAN LAW OF ZONING §§ 1, 9 (2d ed. 1976); CHARLES M. HAAR & MICHAEL A. WOLF, LAND-USE PLANNING 220-55 (4th ed. 1989).
267. See DOUGLAS NEEDHAM, THE ECONOMICS AND POLITICS OF REGULATION 2 (1983); STONE ET AL., supra note 18, at 1580; Hovenkamp, supra note 19, at 393. This is one of the fundamental insights of Coase's influential work: In a market with no transaction costs, the only effect legal rule changes have is on the distribution of wealth. See Stewart Schwab, Coase Defends Coase: Why Lawyers Listen and Economists Do Not, 87 MICH. L. REV. 1171, 1195-96 (1989). Some have argued, including Coase himself later, that this applies only to property rules, not contract rules, because parties to contracts will anticipate all legal changes and contract for them. See id. at 1180-83. For the reasons given by Professor Schwab, this seems unlikely.
268. 114 S. Ct. 2309 (1994).
269. This is at least arguably the interpretation of Justices O'Connor and Scalia, who applied it to a rent regulation scheme in Pennell v. City of San Jose, 485 U.S. 1, 15 (1988) (opinion concurring in part and dissenting in part). This interpretation has not yet captured a majority of the Court, or persuaded Chief Justice Rehnquist. See id. at 14 (holding that no cause/effect relationship is required in rent regulation). It does, however, seem to have intrigued some state courts. See, e.g., Peterman v. State, 521 N.W.2d 499, 511 (Mich. 1994); Manocherian v. Lenox Hill Hosp., 643 N.E.2d 479 (N.Y. 1994).
270. See Kathleen Sullivan, Unconstitutional Conditions, 102 HARV. L. REV. 1413, 1415 (1989). The Court's application of the unconstitutional conditions doctrine to property regulation consists of one tortured sentence. Because the syntax is convoluted, I will spend some space here explaining how I understand it. The sentence at issue is as follows: Under the well-settled doctrine of "unconstitutional conditions," the government may not require a person to give up a constitutional right - here the right to receive just compensation when property is taken for a public use - in exchange for a discretionary benefit conferred by the government where the property sought has little or no relationship to the benefit. Dolan, 114 S. Ct. at 2317. I am assuming that when the Court refers to "property" in the final clause it means to refer back to "constitutional right" in the first clause, that is, they are supposed to be the same thing. So the sentence either reads "the government may not require a person to give up property in exchange for a discretionary benefit conferred by the government where the property sought has little or no relationship to the benefit" or "the government may not require a person to give up a constitutional right in exchange for a discretionary benefit conferred by the government where the right has little or no relationship to the benefit." The latter reading is an incorrect rendition of the unconstitutional conditions doctrine; the doctrine, in its more common First Amendment setting, prevents conditioning government benefits on giving up speech rights whether or not the rights given up are related to the benefits in some way. See Perry v. Sindermann, 408 U.S. 593, 597-98 (1972) (stating that the government may not otherwise produce a result it could not command directly without regard to its relation to the benefit). The former interpretation seems more likely - a twist on the unconstitutional conditions doctrine to fit the property context. That is not the only complexity with the sentence, however. It suggests a relationship between the property sought and the benefit, which in light of the rest of the opinion is not what the Court intends. The benefit granted from the government in this case is the permit. What could the relationship between the easement and the permit possibly be? It might mean that the cost of the permit, presumably a small administrative fee, had to be related to the value of the easement, or that the value of the permit, presumably significantly increased hardware sales, had to be related to the value of the easement. But neither is apparently what the Court means. The necessary relationship is not between the government benefit and the property but between the property and the "impact of petitioner's proposed development." Dolan, 114 S. Ct. at 2318. As I understand this application of the unconstitutional conditions doctrine to property, it is that the government cannot condition a benefit on an owner's giving up property unless there is a roughly proportionate relationship between the impact of the owner's actions and the property. The rest of this Part explores the limitations of the doctrine as applied to property regulations.
271. See Kathleen Sullivan, Unconstitutional Conditions, 102 HARV. L. REV. 1413, 1415 (1989). The Court's application of the unconstitutional conditions doctrine to property regulation consists of one tortured sentence. Because the syntax is convoluted, I will spend some space here explaining how I understand it. The sentence at issue is as follows: Under the well-settled doctrine of "unconstitutional conditions," the government may not require a person to give up a constitutional right - here the right to receive just compensation when property is taken for a public use - in exchange for a discretionary benefit conferred by the government where the property sought has little or no relationship to the benefit. Dolan, 114 S. Ct. at 2317. I am assuming that when the Court refers to "property" in the final clause it means to refer back to "constitutional right" in the first clause, that is, they are supposed to be the same thing. So the sentence either reads "the government may not require a person to give up property in exchange for a discretionary benefit conferred by the government where the property sought has little or no relationship to the benefit" or "the government may not require a person to give up a constitutional right in exchange for a discretionary benefit conferred by the government where the right has little or no relationship to the benefit." The latter reading is an incorrect rendition of the unconstitutional conditions doctrine; the doctrine, in its more common First Amendment setting, prevents conditioning government benefits on giving up speech rights whether or not the rights given up are related to the benefits in some way. See Perry v. Sindermann, 408 U.S. 593, 597-98 (1972) (stating that the government may not otherwise produce a result it could not command directly without regard to its relation to the benefit). The former interpretation seems more likely - a twist on the unconstitutional conditions doctrine to fit the property context. That is not the only complexity with the sentence, however. It suggests a relationship between the property sought and the benefit, which in light of the rest of the opinion is not what the Court intends. The benefit granted from the government in this case is the permit. What could the relationship between the easement and the permit possibly be? It might mean that the cost of the permit, presumably a small administrative fee, had to be related to the value of the easement, or that the value of the permit, presumably significantly increased hardware sales, had to be related to the value of the easement. But neither is apparently what the Court means. The necessary relationship is not between the government benefit and the property but between the property and the "impact of petitioner's proposed development." Dolan, 114 S. Ct. at 2318. As I understand this application of the unconstitutional conditions doctrine to property, it is that the government cannot condition a benefit on an owner's giving up property unless there is a roughly proportionate relationship between the impact of the owner's actions and the property. The rest of this Part explores the limitations of the doctrine as applied to property regulations.
272. There is a doctrine holding that when the government provides services and charges a user fee it should be "a fair approximation of benefits supplied." Massachusetts v. United States, 435 U.S. 444, 463 n.19 (1978). But these fees need not be even roughly calibrated to the use that a party makes of government services. They may result in a particular individual suffering greater burdens than benefits received, even when the party has no choice but to use the government services. Fees also may be flat and thus not directly related to a particular person's use. See, e.g., United States v. Sperry Corp., 493 U.S. 52, 60 (1989). Moreover, there is no requirement that the fee be roughly proportional to the impact of the fee payers' activity. Id. at 59-60. Mrs. Dolan undoubtedly expected to receive a substantial financial benefit from the permit, exceeding the cost of the easement, but that was not the relationship of concern to the Court. Instead, it was the relationship between the easement and the impact of the development.
273. For example, I am an inactive member of the Arizona State Bar, which means I do not practice law in Arizona and take no Continuing Legal Education courses. I do receive an annual bill for dues and a monthly copy of the Arizona Lawyer. I have to pay $100 annually to sustain this privilege. It is hard to believe that the cost of retaining my records in the Arizona Bar Association files and mailing a dues bill in any way approaches $100 annually. Even when I practiced and paid a larger fee of $295, that cost was not "roughly proportional" to the impact of my law practice on the state bar association, because I moved immediately after attaining membership and never used its services. The addition of my name to the rolls of lawyers could not have increased the cost of providing whatever services it provided. State bar associations are state actors for constitutional purposes. See Florida Bar v. Went For It, Inc., 115 S. Ct. 2371, 2374 (1995) (analyzing the constitutionality of a Florida Bar Association rule).
274. Language in Nollan supports this interpretation. See Nollan v. California Coastal Comm'n, 483 U.S. 825, 841 (1987) ("We are inclined to be particularly careful about the adjective [substantial] where the actual conveyance of property is made a condition to the lifting of a land-use restriction . . . ."). Various commentators have suggested this limitation of the means/end scrutiny adopted in Nollan. See Lawrence, supra note 7; Michelman, supra note 4; Note, Taking A Step Back: A Reconsideration of the Takings Test of Nollan v. California Coastal Commission, 102 HARV. L. REV. 448 (1988). Some courts see this limitation in Nollan as well. See, e.g., Blue Jeans Equities W. v. City of San Francisco, 4 Cal. Rptr. 2d. 114, 115 (Ct. App. 1992); Department of Natural Resources v. Indiana Coal Council, 542 N.E.2d 1000, 1005 (Ind. 1989); see also Lemon et al., supra note 150, at 600 (listing cases limiting Nollan test to physical invasions).
275. Dolan v. City of Tigard, 114 S. Ct. 2309, 2316-17 (1994). Many lower courts agree with this interpretation of Dolan. See, e.g., Clajon Prod. Corp. v. Petera, 70 F.3d 1566, 1577 (10th Cir. 1995); International College of Surgeons v. City of Chicago, Nos. 91C1587 & 91C5564, 1994 U.S. Dist. LEXIS 18989 (N.D. 111. Dec. 30, 1994); Harris v. City of Wichita, 862 F. Supp. 287, 293 (D. Kan. 1994); McCarthy v. City of Leawood, 894 P.2d 836, 845 (Kan. 1995); Waters Landing Ltd. Partnership v. Montgomery County, 650 A.2d 712, 724 (Md. 1994); Southeast Cass Water Resource Dist. v. Burlington N. R.R. Co., 527 N.W.2d 884, 896 (N.D. 1995); Garneau v. City of Seattle, 897 F. Supp. 1318, 1325 (W.D. Wash. 1995).
276. The Court at one time explicitly rejected the distinction between payment in cash and payment in physical property. "And as the packer lawfully could be required to pay that sum in money, we think nothing in the Federal Constitution prevents the state from demanding that he give up the same per cent, of [oyster] shells." Leonard v. Earle, 279 U.S. 392, 396 (1929); see also THOMAS M. COOLEY, A TREATISE ON THE LAW OF TAXATION 12 (1876) (illustrating that taxes in kind are treated no differently from taxes in cash). The state court cases cited by the Dolan Court in support of its standard did not indicate that a transfer of an interest in land was any more objectionable than a cash payment. See Dolan, 114 S. Ct. at 2324 (Stevens, J., dissenting).
277. See Michelman, supra note 4, at 1614 n.63 (suggesting this problem); see also Dolan, 114 S. Ct. at 2320 (stating that categorizing government regulation as a business regulation does not determine whether such regulation violates the Takings Clause); Pennell v. City of San Jose, 485 U.S. 1, 22 (1988) (Scalia, J., dissenting in part) (arguing that acting through the landlord-tenant relationship does not transform an unlawful taking into a mere economic regulation).
278. Cf. Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1001 (1984) (holding that an owner can be required to give up a property interest as a condition of registering pesticide so long as there is a rational relationship between the condition and the government interest). After deciding Dolan, the Court vacated and remanded a California case challenging monetary fees imposed as a condition on development for consideration in light of Dolan. Ehrlich v. City of Culver City, 114 S. Ct. 2731 (1994), granting cert. to and vacating 15 Cal. App. 4th 1737 (1993). This could signify that the Court concurs with the proposition that Dolan applies to all exactions, not just those requiring dedication of real property. For a critique of the Court's efforts to distinguish between government benefits and property rights, see Rubenfeld, supra note 88, at 1103-05. Various lower courts have interpreted Dolan as applying the rough proportionality requirement to any condition on a permit to build, not just those requiring a real property dedication. See, e.g., Christopher Lake Dev. Co. v. St. Louis County, 35 F.3d 1269 (8th Cir. 1994); Ehrlich v. City of Culver City, 12 Cal. 4th 854, 859 (1996); Pub. Access Shoreline v. Hawaii County Planning Comm'n, 903 P.2d 1246, 1273 (Haw. 1995); Sprenger, Grubb & Assocs., Inc. v. City of Hailey, 903 P.2d. 741, 747 (Idaho 1995); Northern Ill. Home Builders v. County of DuPage, 649 N.E.2d 384, 388-91 (Ill. 1995); Trimen Dev. Co. v. King County, 877 P.2d 187 (Wash. 1994); cf. Sprenger, Grubb & Assocs., 903 P.2d at 747 (suggesting that Dolan applies to exactions). Courts also have applied Nollan as requiring a nexus between non-dedication building permit conditions and the public needs created by the new development. See, e.g., Building Indus. Assoc. v. City of Oxnard, 267 Cal. Rptr. 769, 770-71 (Cai. Ct. App. 1990); Pitcher v. Herdelberg Township Bd. of Supervisors, 637 A.2d 715, 717 (Pa. Commw. Ct. 1994); Luxembourg Group v. Snohomish County, 887 P.2d 446, 448 (Wash Ct. App. 1995). Some courts also read Nollan as requiring heightened means/ end scrutiny for non-dedication permit limitations on building. See, e.g., McElwain v. County of Flathead, 811 P.2d 1267, 1270 (Mont. 1991).
279. See Stanley N. Katz, Jefferson and the Right to Property in Revolutionary America, 19 J.L. & ECON, 467, 473 (1976).
280. See, e.g., Bowen v. Gillar, 483 U.S. 587, 607-09 (1987) (holding that there is no protected property right to social welfare programs or benefits); Flemming v. Nestor, 363 U.S. 603, 610-11 (1960) (holding that government benefits are not fully "accrued property rights" protected by ordinary takings analysis); see also Bowen v. Public Agencies Opposed to Social Security Entrapment, 477 U.S. 41, 55-56 (1986) (holding that a contract provision between the United States and California giving a right to terminate social security is not "property"); O'Bannon v. Town Court Nursing Ctr., 447 U.S. 773, 790 (1980) (holding that residence in a nursing home provided by Medicare and Medicaid does not constitute a property interest). For an illustrative contrast, compare Lynch v. United States, 292 U.S. 571, 576-77 (1934) (holding that government-issued renewable-term insurance policies give rise to property rights that cannot be redistributed at Congress's discretion); Charles A. Reich, The New Property, 73 YALE L.J. 733, 785 (1964) (urging that "governmental largess" be protected by the Takings Clause).
281. See, e.g., Bowen v. Gillar, 483 U.S. 587, 607-09 (1987) (holding that there is no protected property right to social welfare programs or benefits); Flemming v. Nestor, 363 U.S. 603, 610-11 (1960) (holding that government benefits are not fully "accrued property rights" protected by ordinary takings analysis); see also Bowen v. Public Agencies Opposed to Social Security Entrapment, 477 U.S. 41, 55-56 (1986) (holding that a contract provision between the United States and California giving a right to terminate social security is not "property"); O'Bannon v. Town Court Nursing Ctr., 447 U.S. 773, 790 (1980) (holding that residence in a nursing home provided by Medicare and Medicaid does not constitute a property interest). For an illustrative contrast, compare Lynch v. United States, 292 U.S. 571, 576-77 (1934) (holding that government-issued renewable-term insurance policies give rise to property rights that cannot be redistributed at Congress's discretion); Charles A. Reich, The New Property, 73 YALE L.J. 733, 785 (1964) (urging that "governmental largess" be protected by the Takings Clause).
282. See, e.g., Lindsey v. Normet, 405 U.S. 56 (1972) (shelter); FCC v. Sanders Bros. Radio Station, 309 U.S. 470, 475 (1940) (radio broadcasting permit); Barsky v. Board of Regents, 347 U.S. 442, 451 (1954) (medical license). Thus, for example, the requirement that a citizen serve on a jury or be a witness or serve in the military is not a taking. See Hurtado v. United States, 410 U.S. 578, 578 (1973) (holding that the Fifth Amendment does not require payment when citizens do their duty); United States v. Hobbs, 450 F.2d 935 (10th Cir. 1971) (cited with approval in Hurtado, 410 U.S. at 589) (rejecting a Takings Clause challenge to the Selective Service Act). Other examples include an interest in a tort action or in prejudgment attachment of property. The Court has found neither of these interests to be property protected by the Constitution. See Dames & Moore v. Regan, 453 U.S. 654 (1981); Duke Power Co. v. Carolina Envtl. Study Group, 438 U.S. 59 (1978). These "privileges" could be regulated without raising constitutional concerns in the Lochner era. See, e.g., Continental Baking Co. v. Woodring, 286 U.S. 352 (1932) (holding that the states may require drivers to obtain licenses, comply with reasonable regulations, and pay fees and taxes). After the Lochner era ended, the Court did not begin to protect such interests under the Takings Clause.
283. See, e.g., Leonard v. Earle, 279 U.S. 392, 393 (1929); Child Labor Tax Case, 259 U.S. 20, 29-33 (1922) (Argument for Defendant in Error). During much of the Lochner era many state and federal courts accepted the principle that, if the state could not take property and redistribute it, the state could not use the taxing power to reach the same end. Their conclusion was that only equal taxation was lawful. See COOLEY, supra note 201, at 124-29; HORWITZ, supra note 17, at 20-27.
284. See BRUCE A. ACKERMAN, PRIVATE PROPERTY AND THE CONSTITUTION 109 (1977) (stating that taxing is generally immune from constitutional scrutiny); Saul Levmore, Just Compensation and Just Politics, 22 CONN. L. REV. 285, 286 (1990) (noting that taxes are "subject only to the gentlest judicial review for arbitrariness"); see also Boris I. Bittker, Constitutional Limits on the Taxing Power of the Federal Government, 41 TAX LAW. 3 (1987) (discussing constitutional limits on taxation and noting they rarely have practical effect).
285. See BRUCE A. ACKERMAN, PRIVATE PROPERTY AND THE CONSTITUTION 109 (1977) (stating that taxing is generally immune from constitutional scrutiny); Saul Levmore, Just Compensation and Just Politics, 22 CONN. L. REV. 285, 286 (1990) (noting that taxes are "subject only to the gentlest judicial review for arbitrariness"); see also Boris I. Bittker, Constitutional Limits on the Taxing Power of the Federal Government, 41 TAX LAW. 3 (1987) (discussing constitutional limits on taxation and noting they rarely have practical effect).
286. See BRUCE A. ACKERMAN, PRIVATE PROPERTY AND THE CONSTITUTION 109 (1977) (stating that taxing is generally immune from constitutional scrutiny); Saul Levmore, Just Compensation and Just Politics, 22 CONN. L. REV. 285, 286 (1990) (noting that taxes are "subject only to the gentlest judicial review for arbitrariness"); see also Boris I. Bittker, Constitutional Limits on the Taxing Power of the Federal Government, 41 TAX LAW. 3 (1987) (discussing constitutional limits on taxation and noting they rarely have practical effect).
287. See Nordlinger v. Hahn, 505 U.S. 1, 12-17 (1992) (holding that different taxes on similarly situated property are constitutional); Gregory v. Ashcroft, 501 U.S. 452, 471 (1991) (holding that tax classifications leading to different rates of taxation are constitutional); United States v. Ptasynski, 462 U.S. 74, 82 (1983) (finding that an uneven tax across states is constitutional); City of Pittsburgh v. Alco Parking Corp., 417 U.S. 369, 372-74 (1974) (holding that a twenty percent tax on privately owned parking garages was not a taking although it required the business to operate at a loss and competitors, the publicly owned garages, were exempt from the tax).
288. See ACKERMAN, supra note 208, at 109. Justices O'Connor and Scalia have argued that the Takings Clause prevents all redistribution except through taxes, unless the regulated party benefits disproportionately from the public problem. According to them, taxes appear to be the only constitutional redistributive method. Pennell v. City of San Jose, 485 U.S. 1, 22-23 (1988) (Scalia, J., joined by O'Connor, J., concurring in part and dissenting in part); cf. STONE ET AL., supra note 18, at 1565 (stating that the Takings Clause "reflects a judgment that if government is seeking to produce some public benefit . . . it is appropriate that the payment come from the public at large - taxpayers - rather than from identifiable individuals").
289. See ACKERMAN, supra note 208, at 165, 269-70 n.116.
290. 212 See supra note 85.
291. Concrete Pipe & Prods, v. Construction Laborers Pension Trust, 508 U.S. 602, 645 (1993). In that case the Court held that a law requiring money payments to pension funds under the Multiemployer Pension Plan Amendments Act of 1980 was not a taking although it would "confiscate," according to petitioner, forty-six percent of equity. Id.
292. See id. at 643 (limiting the reach of the Lucas test to those regulations that destroy all the economically beneficial use of real property); Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1027-28 (1992) ("And in the case personal property, by reason of the State's traditionally high degree of control over commercial dealings, [the owner] ought to be aware of the possibility that new regulation might even render his property economically worthless . . . ."); Connolly v. Pension Benefits Guar. Corp., 475 U.S. 211, 223-24 (1986) (holding that complete destruction of property rights created by contract was not necessarily a taking); Andrus v. Allard, 444 U.S. 51 (1979) (holding that there was no taking when the government prevented all sales of a product); New Haven Inclusion Cases, 399 U.S. 392, 492 (1970) (finding that the loss of $60 million to bondholders in government reorganization of a railroad was not a taking). This is always the case when the government demands money payment. In United States v. Sperry Corp., 493 U.S. 52 (1989), Sperry claimed the government's deducting 1.5% of $2.8 million from a monetary award was a per se taking because the government took the entire $42,000. 493 U.S. at 58. The Court remarked, "It is artificial to view deductions of a percentage of a monetary award as physical appropriations of property [and
293. See Concrete Pipe, 508 U.S. at 645; Connolly, 475 U.S. at 227; Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1005 (1984). The only exception to this generalization occurs when the government has made an explicit promise, the owner has relied on the promise, and the government has reneged. See Ruckelshaus, 467 U.S. at 1010-14.
294. Concrete Pipe, 508 U.S. at 637; see also Connolly, 475 U.S. at 225; United States v. Locke, 471 U.S. 84, 105 (1985).
295. See Concrete Pipe, 508 U.S. at 638 (noting that it does not matter that "the withdrawal liability assessed against Concrete Pipe may amount to more (or less) than the share of the Plan's liability strictly attributable to employment of covered workers at Concrete Pipe"); Locke, 471 U.S. at 109-10 ("Because we deal here with purely economic legislation Congress was entitled to conclude that it was preferable to place a substantial portion of the burden on claimants to make the national recording system work.").
296. See Concrete Pipe, 508 U.S. 602; Connolly, 475 U.S. 211.
297. See Sperry Corp., 493 U.S. 52.
298. See Andrus v. Allard, 444 U.S. 51 (1979). Although it appeared that this holding was no longer valid precedent, see Hodel v. Irving, 481 U.S. 704, 719 (1986) (Scalia, J., concurring) (stating that this decision limits Andrus to its facts), it now appears to be in good standing. See Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1026 (1992) (citing Andrus as authority).
299. See Ruckelshaus v. Monsanto Co., 467 U.S. 986 (1984).
300. See Locke, 471 U.S. 84.
301. See, e.g., Kirby Forest Indus, v. United States, 467 U.S. 1, 15 (1984) (finding that an impairment of market value was not a taking); see also Lucas, 505 U.S. at 1027-28 n.14 (suggesting that laws that destroy the value of land are constitutional if they are not aimed at land); Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104,131 (1978) (noting that cases "uniformly reject the proposition that diminution in property value, standing alone, can establish a 'taking'").
302. FCC v. Florida Power Corp., 480 U.S. 245, 253 (1987) ("Such regulation of maximum rates or prices may, consistently with the Constitution, limit stringently the return.") (citations omitted); see also Yee v. City of Escondido, 503 U.S. 519, 528-29 (1992) (holding that rent control of real estate is constitutional); Pennell v. City of San Jose, 485 U.S. 1, 11, 12 n.8, 13 (1988) ("[W]e have recognized that the government may intervene in the marketplace to regulate rates or prices."); Connolly v. Pension Benefit Guar. Corp., 475 U.S. 211, 223 (1986) ("Congress may set minimum wages, control prices or create causes of action that did not previously exist.").
303. Duquesne Light Co. v. Barasch, 488 U.S. 299, 307 (1989). The Lochner-era Court also sought to draw the line between "confiscatory" regulation and constitutional rate regulation. However, regulation can constitutionally reduce value much further in the hands of the post-Lochner Court. Rates that result in an economic loss do not meet that standard. Id. at 301-06. Nor do laws that prevent a regulated party from earning a profit, see City of Pittsburgh v. Alco Parking Corp., 417 U.S. 369 (1974), or that are insufficient to cover cost, see Baltimore & Ohio R.R. Co. v. United States, 345 U.S. 146 (1953). Under the logic of any of the approaches used for distinguishing confiscations from regulations during the Lochner era, these laws would seem to be confiscatory. For a thorough and illuminating discussion of Court review of rate regulation in the Lochner era, including the various approaches competing for the Court's imprimatur, see Siegel, Understanding the Lochner Era, supra note 16.
304. See Costonis, supra note 158, at 477; Note, supra note 7, at 1067-68.
305. Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 434-35 (1982).
306. Kaiser Aetna v. United States, 444 U.S. 164, 179-80 (1979) (holding that the "right to exclude" is a fundamental element of property that cannot be taken without compensation).
307. Nollan v. California Coastal Comm'n, 483 U.S 825, 831 (1987); see also Dolan v. City of Tigard, 114 S. Ct. 2309, 2327 n.10, 2328 (1994) (Stevens, J., dissenting) (commenting on the Court's failure to consider economic loss); Fresh Pond Shopping Ctr., Inc. v. Callahan, 464 U.S. 875, 887-88 (1983) (Rehnquist, J., dissenting from the dismissal of appeal) (arguing that the elimination of the right to exclude is a taking whatever its economic impact).
308. 481 U.S. 704, 711 (1987). The Indian Compensation Act applied only if the property interest had earned less than $100 in the previous year. See id. at 709. In both Kaiser Aetna and Hodel, the Court used balancing language in the opinion, but the Court's decision in both appeared to rest on the importance of the right limited by the government action.
309. See Yee v. City of Escondido, 503 U.S. 519, 528-30 (1992); FCC v. Florida Power Corp., 480 U.S. 245, 252 (1987); United States v. Locke, 471 U.S. 84, 104 (1985); Loretto, 458 U.S. at 440.
310. Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1018 (1992).
311. The only arguable exception to the framework developed here in post-1980 takings cases is Keystone Bituminous Coal Ass'n v. DeBenedictis, 480 U.S. 470 (1987). Keystone is consistent with this approach in its suggestion that permanent physical occupations and regulations that eliminate all economic value are per se takings, id. at 489 n.18, but the holding appeared to rest on the nuisance exception, id. at 490-92. This assertion is a throwback to Lochner-era analysis, which sought to separate regulations into those preventing harm and those infringing on property. See Rubenfeld, supra note 88; see also supra Part I.B. This aspect of Keystone appears more as an aberration than a harbinger for two reasons. First, the Court in Lucas sharply limited the "nuisance" exception, adopting much of the reasoning of then-Justice Rehnquist's dissent in Keystone. Second, of the five Justices in the majority in Keystone - Justices Brennan, White, Marshall, Blackmun, and Stevens - only Justice Stevens remains on the Court. The three Justices whose views have dominated takings law since the 1980s - Chief Justice Rehnquist and Justices O'Connor and Scalia - all dissented.
312. Agins v. City of Tiburon, 447 U.S. 255, 262 (1980).
313. See Lucas, 505 U.S. at 1015-21 (discussing the constitutionality of prohibitions on all beach development); Yee, 503 U.S. at 528 (discussing the constitutionality of limitations on leaving the rental business). The prediction that the Court will find the prohibition of any change in the use of land a taking is more speculative because the Court has not yet squarely decided this issue. My argument that it is unconstitutional is based on dicta in various cases and lower court opinions. See supra notes 114-19 and accompanying text.
314. See Dolan v. City of Tigard, 114 S. Ct. 2309, 2317 (1994); Nollan v. California Coastal Comm'n, 483 U.S. 825, 834 (1987).
315. See Hodel v. Irving, 481 U.S. 704, 715 (1987); Michelman, supra note 4, at 1612 n.59 (suggesting this interpretation).
316. See Yee, 503 U.S. 519; see also Manocherian v. Lenox Hill Hosp., 643 N.E.2d 479, 480 (N.Y. 1994) (finding limits on exiting rental business unconstitutional); Seawall Assocs. v. City of New York, 542 N.E.2d 1059, 1065 (N.Y. 1989) (same).
317. See Lucas, 505 U.S. 1003; DANIEL R. MANDELKER, LAND USE LAW 23 (3d ed. 1993). As described, the Lucas rule contains an exception for limitations that duplicate a public or private nuisance, or forestall grave threats to the life or property of others. Wetland and coastal restrictions or growth limits in the suburbs, however, do not appear to be targeted at common-law nuisances or grave threats to life. See, e.g., Loveladies Harbor, Inc. v. United States, 28 F.3d 1171, 1182-83 (Fed. Cir. 1994) (holding that a wetland restriction was not equivalent to the common law of nuisance); Florida Rock Indus. Inc. v. United States, 18 F.3d 1560, 1565 (Fed. Cir. 1994) (same); Lucas v. South Carolina Coastal Council, 424 S.E.2d 484, 486 (S.C. 1992) (Lucas on remand) (holding that a South Carolina coastal restriction did not replicate common-law nuisance); EPSTEIN, supra note 8, at 123 (arguing that the common law of nuisance does not justify wetland regulations).
318. Another common suburban control is placing temporary moratoriums on building, an action usually justified by the need to study a change in zoning or as a result of insufficient sewage or water capacity. The constitutionality of temporary moratoriums is less clear. Total permanent prohibitions on building after Lucas are per se unconstitutional. However, moratoriums are not total prohibitions, but delays for planning purposes. The Court has approved such delays as constitutional without compensation, at least in dicta. See First English Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304, 320-21 (1987); Agins v. City of Tiburon, 447 U.S. 255, 263 n.9 (1980) (noting that limited ability to use property during condemnation proceedings was a transitory restraint and not a taking); see also First English, 482 U.S. at 310 (defining temporary takings as "those regulatory takings which are ultimately invalidated by the courts"); Michelman, supra note 4, at 1620-21 & n.102 (arguing that the Court intended "temporary" takings requiring compensation to be only those takings that prove "temporary" by reason of a change of the government's mind, not regulations such as temporary moratoriums that are temporary by design). So long as the permit is feasible at some point, temporary moratoriums will likely remain constitutional. See, e.g., Orange Lake Assocs. Inc. v. Kirkpatrick, 21 F.3d 1214, 1224-25 (2d Cir. 1994); Kawaoka v. City of Arroyo Grande, 17 F.3d 1227 (9th Cir. 1994); Carpenter v. Tahoe Reg'l Planning Agency, 804 F. Supp. 1316, 1329 (D. Nev. 1992); Stubblefield Constr. Co. v. City of San Bernardino, 38 Cal. Rptr. 2d 413 (Ct. App. 1995); Hills v. City of Oceanside, 31 Cal. App. 4th 1060 (1995).
319. See South Burlington County NAACP v. Township of Mount Laurel, 336 A.2d 713, 719 (N.J. 1975) (stating that the purpose of industrial-only zoning was to leave land open); WILLIAM A. FISCHEL, THE ECONOMICS OF ZONING LAWS 69-79, 329 (1985); Robert C. Ellickson, Suburban Growth Controls: An Economic and Legal Analysis, 86 YALE L.J. 385, 390-91 (1977) (discussing the use of zoning to limit housing construction).
320. See South Burlington County NAACP v. Township of Mount Laurel, 336 A.2d 713, 719 (N.J. 1975) (stating that the purpose of industrial-only zoning was to leave land open); WILLIAM A. FISCHEL, THE ECONOMICS OF ZONING LAWS 69-79, 329 (1985); Robert C. Ellickson, Suburban Growth Controls: An Economic and Legal Analysis, 86 YALE L.J. 385, 390-91 (1977) (discussing the use of zoning to limit housing construction).
321. See South Burlington County NAACP v. Township of Mount Laurel, 336 A.2d 713, 719 (N.J. 1975) (stating that the purpose of industrial-only zoning was to leave land open); WILLIAM A. FISCHEL, THE ECONOMICS OF ZONING LAWS 69-79, 329 (1985); Robert C. Ellickson, Suburban Growth Controls: An Economic and Legal Analysis, 86 YALE L.J. 385, 390-91 (1977) (discussing the use of zoning to limit housing construction).
322. See, e.g., Williamson County Reg'l Planning Comm'n v. Hamilton Bank, 473 U.S. 172, 191-92 n.12 (1985) (suggesting that changes in zoning laws do not effect a taking despite developer's claim that it was not economical to build); Agins, 447 U.S. at 258-59 (holding that the zoning change is not a taking despite developer's claim that the change made it unprofitable to build).
323. The Endangered Species Act (ESA) also has the potential to restrict land uses severely but has not yet raised constitutional issues. The regulations usually permit some development: Out of 98,237 consultations between 1987 and 1992, the EPA stopped only fifty-five projects. Douglas Chadwick, Dead or Alive: The Endangered Species Act, NAT'L GEOGRAPHIC, Mar. 1995, at 2, 15. Congress also weakened the original 1973 Act when it granted greater latitude in enforcement, loosened the process to petition for an exemption, and granted a cabinet-level committee the power to permit the extinction of a species if salvaging it would cause undue social and economic hardship. See Jared des Rosiers, Note, The Exemption Process Under the Endangered Species Act: How the "God Squad" Works and Why, 66 NOTRE DAME L. REV. 825, 825-30 (1991) (examining the exemption process in the ESA and concluding that the exemptions undercut the Act); John Lowe Weston, Comment, The Endangered Species Committee and the Northern Spotted Owl: Did the "God Squad" Play God?, 7 ADMIN. L.J. AM. U. 779, 788-93 (1994) (same). To my knowledge no court has yet held that ESA regulations have effected a taking of property.
324. Lucas v. South Carolina Coastal Council, 503 U.S. 1003 (1992).
325. See Loveladies Harbor, Inc. v. United States, 28 F.3d 1171, 1181-82 (Fed. Cir. 1994); Florida Rock Indus. Inc. v. United States, 18 F.3d 1560, 1570-71 (Fed. Cir. 1994).
326. For descriptions of various programs see ALAN A. ALTSHULER & JOSÉ A. GÓMEZ-IBÁÑEZ, REGULATION FOR REVENUE 34-46 (1993); Louis Weschler et al., Politics and Administration of Development Exactions, in DEVELOPMENT EXACTIONS 15, 41 (James E. Frank & Robert M. Rhodes eds., 1987).
327. For descriptions of various programs see ALAN A. ALTSHULER & JOSÉ A. GÓMEZ-IBÁÑEZ, REGULATION FOR REVENUE 34-46 (1993); Louis Weschler et al., Politics and Administration of Development Exactions, in DEVELOPMENT EXACTIONS 15, 41 (James E. Frank & Robert M. Rhodes eds., 1987).
328. See Elizabeth D. Purdum & James E. Frank, Community Use of Exactions: Results of a National Survey, in DEVELOPMENT EXACTIONS, supra note 246, at 123; R. Marlin Smith, From Subdivision Improvement Requirements to Community Benefit Assessments and Linkage Payments: A Brief History of Land Development Exactions, 50 LAW & CONTEMP. PROBS. 5 (1987); Carol E. Soble, Developers' Perspective on Impact Fees, in PRIVATE SUPPLY OF PUBLIC SERVICES 145, 147 (Rachelle Alterman ed., 1988).
329. See Elizabeth D. Purdum & James E. Frank, Community Use of Exactions: Results of a National Survey, in DEVELOPMENT EXACTIONS, supra note 246, at 123; R. Marlin Smith, From Subdivision Improvement Requirements to Community Benefit Assessments and Linkage Payments: A Brief History of Land Development Exactions, 50 LAW & CONTEMP. PROBS. 5 (1987); Carol E. Soble, Developers' Perspective on Impact Fees, in PRIVATE SUPPLY OF PUBLIC SERVICES 145, 147 (Rachelle Alterman ed., 1988).
330. See Elizabeth D. Purdum & James E. Frank, Community Use of Exactions: Results of a National Survey, in DEVELOPMENT EXACTIONS, supra note 246, at 123; R. Marlin Smith, From Subdivision Improvement Requirements to Community Benefit Assessments and Linkage Payments: A Brief History of Land Development Exactions, 50 LAW & CONTEMP. PROBS. 5 (1987); Carol E. Soble, Developers' Perspective on Impact Fees, in PRIVATE SUPPLY OF PUBLIC SERVICES 145, 147 (Rachelle Alterman ed., 1988).
331. See Soble, supra note 247, at 147; Weschler et al., supra note 246, at 17-18.
332. See Dolan v. City of Tigard, 114 S. Ct. 2309, 2320 (1994) (noting that a permit condition not to develop in areas subject to greater flooding from a paved parking lot would be constitutional); Pennell v. City of San Jose, 485 U.S. 1, 20 (1988) (Scalia, J., dissenting) (arguing that requiring subdivider to dedicate roads is constitutional under the cause/effect standard); Nollan v. California Coastal Comm'n, 483 U.S. 825, 839 (1987) (citing with approval exaction cases upholding municipal exactions that have a nexus between the size of the exaction and externalities attributable to the landowner's use).
333. See RACHELLE ALTERMAN, EVALUATING LINKAGE, AND BEYOND 5 (1989); ALTSHULER & GÓMEZ-IBÁÑEZ, supra note 246, at 43; Fred P. Bosselman & Nancy Stroud, Legal Aspects of Development Exactions, in DEVELOPMENT EXACTIONS, supra note 246, at 70, 88-94.
334. See RACHELLE ALTERMAN, EVALUATING LINKAGE, AND BEYOND 5 (1989); ALTSHULER & GÓMEZ-IBÁÑEZ, supra note 246, at 43; Fred P. Bosselman & Nancy Stroud, Legal Aspects of Development Exactions, in DEVELOPMENT EXACTIONS, supra note 246, at 70, 88-94.
335. See RACHELLE ALTERMAN, EVALUATING LINKAGE, AND BEYOND 5 (1989); ALTSHULER & GÓMEZ-IBÁÑEZ, supra note 246, at 43; Fred P. Bosselman & Nancy Stroud, Legal Aspects of Development Exactions, in DEVELOPMENT EXACTIONS, supra note 246, at 70, 88-94.
336. For sources making this point, see Commercial Builders v. Sacramento, 941 F.2d 872, 876-77 (9th Cir. 1991) (Beezer, J., dissenting); Jerold S. Kayden, Zoning for Dollars: New Rules for an Old Game? Comments on the Municipal Art Society and Nollan Cases, 39 WASH. U. J. URB. & CONTEMP. L. 3, 40-41 (1991); Stewart E. Sterk, Competition Among Municipalities as a Constraint on Land Use Exactions, 45 VAND. L. REV. 831, 846-47 (1992).
337. For sources making this point, see Commercial Builders v. Sacramento, 941 F.2d 872, 876-77 (9th Cir. 1991) (Beezer, J., dissenting); Jerold S. Kayden, Zoning for Dollars: New Rules for an Old Game? Comments on the Municipal Art Society and Nollan Cases, 39 WASH. U. J. URB. & CONTEMP. L. 3, 40-41 (1991); Stewart E. Sterk, Competition Among Municipalities as a Constraint on Land Use Exactions, 45 VAND. L. REV. 831, 846-47 (1992).
338. For sources making this point, see Commercial Builders v. Sacramento, 941 F.2d 872, 876-77 (9th Cir. 1991) (Beezer, J., dissenting); Jerold S. Kayden, Zoning for Dollars: New Rules for an Old Game? Comments on the Municipal Art Society and Nollan Cases, 39 WASH. U. J. URB. & CONTEMP. L. 3, 40-41 (1991); Stewart E. Sterk, Competition Among Municipalities as a Constraint on Land Use Exactions, 45 VAND. L. REV. 831, 846-47 (1992).
339. Ronald Coase wrote the early and still leading commentary on this. R.H. Coase, The Problem of Social Cost, 3 J.L. & ECON. 1 (1960); see also TRIBE, supra note 31, at 594; Michelman, supra note 4, at 1603 n.18. Oddly, the centerpiece of the Court's decision in Lucas was the impossibility of a determinate answer to the question whether a property owner caused a harm. Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1004-08 (1992).
340. This seems especially likely given the Court's rejection of the proof in Dolan, in which the City of Tigard had studies indicating that a larger retail sale facility would increase traffic by roughly 435 additional trips per day, and that a bike path would offset some of the traffic demand. 114 S. Ct. at 2321-22; see also Schultz v. City of Grants Pass, 884 P.2d 569, 571-72 (Or. 1994) (applying difficult proof requirement).
341. See Susan Rose-Ackerman, Against Ad-Hocery: A Comment on Michelman, 88 COLUM. L. REV. 1697, 1697 (1988). This tendency is exacerbated by the Court's ruling in First English Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304 (1987), which requires the local government to pay for "temporary takings" that occur while its regulation, later found to be unconstitutional, is in place. Id. at 321 (remarking that the requirement will impair land use planners' freedom and flexibility); id. at 322, 340-41 (Stevens, J. dissenting) (same); Nollan, 483 U.S. at 866-67 (Stevens, J., dissenting) (same); see also Alexander, supra note 88, at 1761-62 (stating that the point of the remedy in First English was to constrain local governments from regulating). But see Theodore M. Cooperstein, Sensing Leave for One's Takings: Interim Damages and Land Use Regulation, 7 STAN. ENVTL. L.J. 49, 52-60 (1987-88) (arguing, based on a survey of local land use planners, that the availability of damages for a temporary taking will have no chilling effect).
342. See Susan Rose-Ackerman, Against Ad-Hocery: A Comment on Michelman, 88 COLUM. L. REV. 1697, 1697 (1988). This tendency is exacerbated by the Court's ruling in First English Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304 (1987), which requires the local government to pay for "temporary takings" that occur while its regulation, later found to be unconstitutional, is in place. Id. at 321 (remarking that the requirement will impair land use planners' freedom and flexibility); id. at 322, 340-41 (Stevens, J. dissenting) (same); Nollan, 483 U.S. at 866-67 (Stevens, J., dissenting) (same); see also Alexander, supra note 88, at 1761-62 (stating that the point of the remedy in First English was to constrain local governments from regulating). But see Theodore M. Cooperstein, Sensing Leave for One's Takings: Interim Damages and Land Use Regulation, 7 STAN. ENVTL. L.J. 49, 52-60 (1987-88) (arguing, based on a survey of local land use planners, that the availability of damages for a temporary taking will have no chilling effect).
343. See supra notes 114-19 and accompanying text.
344. See ACKERMAN, supra note 208, at 166; Grey, supra note 36, at 70; see also STATISTICAL ABSTRACT OF THE UNITED STATES 483 (114th ed. 1994)
345. See ACKERMAN, supra note 208, at 166; Grey, supra note 36, at 70; see also STATISTICAL ABSTRACT OF THE UNITED STATES 483 (114th ed. 1994)
346. (stating that in 1991, net private stock of fixed tangible wealth was estimated at $9,258 billion, and intangible financial assets at $15,380 billion).
347. See ALVIN TOFFLER & HEIDI TOFFLER, CREATING A NEW CIVILIZATION: THE POLITICS OF THE THIRD WAVE 49-61 (1995); ROBERT REICH, THE WORK OF NATIONS 108-09 (1992); Peter F. Drucker, The Age of Social Transformation, ATLANTIC MONTHLY, Nov. 1994, at 53, 64-77.
348. See ALVIN TOFFLER & HEIDI TOFFLER, CREATING A NEW CIVILIZATION: THE POLITICS OF THE THIRD WAVE 49-61 (1995); ROBERT REICH, THE WORK OF NATIONS 108-09 (1992); Peter F. Drucker, The Age of Social Transformation, ATLANTIC MONTHLY, Nov. 1994, at 53, 64-77.
349. See ALVIN TOFFLER & HEIDI TOFFLER, CREATING A NEW CIVILIZATION: THE POLITICS OF THE THIRD WAVE 49-61 (1995); ROBERT REICH, THE WORK OF NATIONS 108-09 (1992); Peter F. Drucker, The Age of Social Transformation, ATLANTIC MONTHLY, Nov. 1994, at 53, 64-77.
350. See ALTERMAN, supra note 250, at 60.
351. See JOEL S. WEISSMAN & ARNOLD M. EPSTEIN, FALLING THROUGH THE SAFETY NET 137-140 (1994) (discussing national health insurance reform); Milt Freudenheim, Health Care off Agendas After Clinton Failure, States Delay, Drop Issue, L.A. DAILY NEWS, July 2, 1995, at N23.
352. See CENTER ON BUDGET & POLICY PRIORITIES, AN UNRAVELING CONSENSUS 5-13 (1995); CHARLES NOBLE, LIBERALISM AT WORK: THE RISE AND FALL OF OSHA (1986); Jared Bernstein & Lawrence Mishel, The Growth of the Low-Wage Labor Market: Who, What and Why, 3 KAN. J.L. & PUB. POL'Y 12, 23 (1994). The idea of income redistribution, never terribly popular in the United States, became decidedly less so by the 1980s. BENJAMIN PAGE & ROBERT SHAPIRO, THE RATIONAL PUBLIC: FIFTY YEARS OF TRENDS IN AMERICANS' POLICY PREFERENCES 127-29 (1992). The minimum wage rose from $4.25 an hour to $4.75 on October 1, 1996, and will reach $5.15 in September 1997. Richard Stevenson, Clinton Signs Bill Raising Minimum Wage by 90 Cents, N. Y. TIMES, Aug. 21, 1996, at B6. However, this increase still only restores the minimum wage to 48% of the purchasing power it had in 1979, and leaves a family of three below the poverty line. See Cindy Loose, Children of the Working Poor Called "Invisible" in Welfare Debate, WASH. POST, June 3, 1996, at D3; Robert A. Rankin & Brigid Schulte, Bottom Line: Go Get a Job, DENVER POST, Aug. 3, 1996, at A01; Eric Schmitt, Senate Passes Bill for Raise to $5.15 in Minimum Wage, N.Y. TIMES, July 10, 1996, at A1.
353. See CENTER ON BUDGET & POLICY PRIORITIES, AN UNRAVELING CONSENSUS 5-13 (1995); CHARLES NOBLE, LIBERALISM AT WORK: THE RISE AND FALL OF OSHA (1986); Jared Bernstein & Lawrence Mishel, The Growth of the Low-Wage Labor Market: Who, What and Why, 3 KAN. J.L. & PUB. POL'Y 12, 23 (1994). The idea of income redistribution, never terribly popular in the United States, became decidedly less so by the 1980s. BENJAMIN PAGE & ROBERT SHAPIRO, THE RATIONAL PUBLIC: FIFTY YEARS OF TRENDS IN AMERICANS' POLICY PREFERENCES 127-29 (1992). The minimum wage rose from $4.25 an hour to $4.75 on October 1, 1996, and will reach $5.15 in September 1997. Richard Stevenson, Clinton Signs Bill Raising Minimum Wage by 90 Cents, N. Y. TIMES, Aug. 21, 1996, at B6. However, this increase still only restores the minimum wage to 48% of the purchasing power it had in 1979, and leaves a family of three below the poverty line. See Cindy Loose, Children of the Working Poor Called "Invisible" in Welfare Debate, WASH. POST, June 3, 1996, at D3; Robert A. Rankin & Brigid Schulte, Bottom Line: Go Get a Job, DENVER POST, Aug. 3, 1996, at A01; Eric Schmitt, Senate Passes Bill for Raise to $5.15 in Minimum Wage, N.Y. TIMES, July 10, 1996, at A1.
354. See CENTER ON BUDGET & POLICY PRIORITIES, AN UNRAVELING CONSENSUS 5-13 (1995); CHARLES NOBLE, LIBERALISM AT WORK: THE RISE AND FALL OF OSHA (1986); Jared Bernstein & Lawrence Mishel, The Growth of the Low-Wage Labor Market: Who, What and Why, 3 KAN. J.L. & PUB. POL'Y 12, 23 (1994). The idea of income redistribution, never terribly popular in the United States, became decidedly less so by the 1980s. BENJAMIN PAGE & ROBERT SHAPIRO, THE RATIONAL PUBLIC: FIFTY YEARS OF TRENDS IN AMERICANS' POLICY PREFERENCES 127-29 (1992). The minimum wage rose from $4.25 an hour to $4.75 on October 1, 1996, and will reach $5.15 in September 1997. Richard Stevenson, Clinton Signs Bill Raising Minimum Wage by 90 Cents, N. Y. TIMES, Aug. 21, 1996, at B6. However, this increase still only restores the minimum wage to 48% of the purchasing power it had in 1979, and leaves a family of three below the poverty line. See Cindy Loose, Children of the Working Poor Called "Invisible" in Welfare Debate, WASH. POST, June 3, 1996, at D3; Robert A. Rankin & Brigid Schulte, Bottom Line: Go Get a Job, DENVER POST, Aug. 3, 1996, at A01; Eric Schmitt, Senate Passes Bill for Raise to $5.15 in Minimum Wage, N.Y. TIMES, July 10, 1996, at A1.
355. See CENTER ON BUDGET & POLICY PRIORITIES, AN UNRAVELING CONSENSUS 5-13 (1995); CHARLES NOBLE, LIBERALISM AT WORK: THE RISE AND FALL OF OSHA (1986); Jared Bernstein & Lawrence Mishel, The Growth of the Low-Wage Labor Market: Who, What and Why, 3 KAN. J.L. & PUB. POL'Y 12, 23 (1994). The idea of income redistribution, never terribly popular in the United States, became decidedly less so by the 1980s. BENJAMIN PAGE & ROBERT SHAPIRO, THE RATIONAL PUBLIC: FIFTY YEARS OF TRENDS IN AMERICANS' POLICY PREFERENCES 127-29 (1992). The minimum wage rose from $4.25 an hour to $4.75 on October 1, 1996, and will reach $5.15 in September 1997. Richard Stevenson, Clinton Signs Bill Raising Minimum Wage by 90 Cents, N. Y. TIMES, Aug. 21, 1996, at B6. However, this increase still only restores the minimum wage to 48% of the purchasing power it had in 1979, and leaves a family of three below the poverty line. See Cindy Loose, Children of the Working Poor Called "Invisible" in Welfare Debate, WASH. POST, June 3, 1996, at D3; Robert A. Rankin & Brigid Schulte, Bottom Line: Go Get a Job, DENVER POST, Aug. 3, 1996, at A01; Eric Schmitt, Senate Passes Bill for Raise to $5.15 in Minimum Wage, N.Y. TIMES, July 10, 1996, at A1.
356. See KARL CASE & RAY FAIR, PRINCIPLES OF MICROECONOMICS 444 (3d ed. 1994); CONGRESSIONAL BUDGET OFFICE, THE CHANGING DISTRIBUTION OF FEDERAL TAXES 1975-1990, at 48 (1987); KEVIN PHILLIPS, BOILING POINT: DEMOCRATS, REPUBLICANS, AND THE DECLINE OF MIDDLE-CLASS PROSPERITY 104-123 (1993) [hereinafter PHILLIPS, BOILING POINT]; KEVIN PHILLIPS, THE POLITICS OF RICH AND POOR 76-86 (1990); Allen D. Manvel, Comparing Tax Burdens of American Families, 10 TAX NOTES 1133, 1133-34 (1988). The federal income tax is the reason there is any tendency toward progressivity, so as the federal tax becomes flatter the system as a whole becomes less progressive. See Manvel, supra, at 1134. Overall, whether or not taxes are redistributive varies depending on how much the state and local taxes are regressive. For some evidence on the progressivity of state and local taxes, see NORMAN R. LUTTBEG, COMPARING THE STATES AND COMMUNITIES 104-14 (1992); PHILLIPS, BOILING POINT, supra, at 114-27.
357. See KARL CASE & RAY FAIR, PRINCIPLES OF MICROECONOMICS 444 (3d ed. 1994); CONGRESSIONAL BUDGET OFFICE, THE CHANGING DISTRIBUTION OF FEDERAL TAXES 1975-1990, at 48 (1987); KEVIN PHILLIPS, BOILING POINT: DEMOCRATS, REPUBLICANS, AND THE DECLINE OF MIDDLE-CLASS PROSPERITY 104-123 (1993) [hereinafter PHILLIPS, BOILING POINT]; KEVIN PHILLIPS, THE POLITICS OF RICH AND POOR 76-86 (1990); Allen D. Manvel, Comparing Tax Burdens of American Families, 10 TAX NOTES 1133, 1133-34 (1988). The federal income tax is the reason there is any tendency toward progressivity, so as the federal tax becomes flatter the system as a whole becomes less progressive. See Manvel, supra, at 1134. Overall, whether or not taxes are redistributive varies depending on how much the state and local taxes are regressive. For some evidence on the progressivity of state and local taxes, see NORMAN R. LUTTBEG, COMPARING THE STATES AND COMMUNITIES 104-14 (1992); PHILLIPS, BOILING POINT, supra, at 114-27.
358. See KARL CASE & RAY FAIR, PRINCIPLES OF MICROECONOMICS 444 (3d ed. 1994); CONGRESSIONAL BUDGET OFFICE, THE CHANGING DISTRIBUTION OF FEDERAL TAXES 1975-1990, at 48 (1987); KEVIN PHILLIPS, BOILING POINT: DEMOCRATS, REPUBLICANS, AND THE DECLINE OF MIDDLE-CLASS PROSPERITY 104-123 (1993) [hereinafter PHILLIPS, BOILING POINT]; KEVIN PHILLIPS, THE POLITICS OF RICH AND POOR 76-86 (1990); Allen D. Manvel, Comparing Tax Burdens of American Families, 10 TAX NOTES 1133, 1133-34 (1988). The federal income tax is the reason there is any tendency toward progressivity, so as the federal tax becomes flatter the system as a whole becomes less progressive. See Manvel, supra, at 1134. Overall, whether or not taxes are redistributive varies depending on how much the state and local taxes are regressive. For some evidence on the progressivity of state and local taxes, see NORMAN R. LUTTBEG, COMPARING THE STATES AND COMMUNITIES 104-14 (1992); PHILLIPS, BOILING POINT, supra, at 114-27.
359. See KARL CASE & RAY FAIR, PRINCIPLES OF MICROECONOMICS 444 (3d ed. 1994); CONGRESSIONAL BUDGET OFFICE, THE CHANGING DISTRIBUTION OF FEDERAL TAXES 1975-1990, at 48 (1987); KEVIN PHILLIPS, BOILING POINT: DEMOCRATS, REPUBLICANS, AND THE DECLINE OF MIDDLE-CLASS PROSPERITY 104-123 (1993) [hereinafter PHILLIPS, BOILING POINT]; KEVIN PHILLIPS, THE POLITICS OF RICH AND POOR 76-86 (1990); Allen D. Manvel, Comparing Tax Burdens of American Families, 10 TAX NOTES 1133, 1133-34 (1988). The federal income tax is the reason there is any tendency toward progressivity, so as the federal tax becomes flatter the system as a whole becomes less progressive. See Manvel, supra, at 1134. Overall, whether or not taxes are redistributive varies depending on how much the state and local taxes are regressive. For some evidence on the progressivity of state and local taxes, see NORMAN R. LUTTBEG, COMPARING THE STATES AND COMMUNITIES 104-14 (1992); PHILLIPS, BOILING POINT, supra, at 114-27.
360. See KARL CASE & RAY FAIR, PRINCIPLES OF MICROECONOMICS 444 (3d ed. 1994); CONGRESSIONAL BUDGET OFFICE, THE CHANGING DISTRIBUTION OF FEDERAL TAXES 1975-1990, at 48 (1987); KEVIN PHILLIPS, BOILING POINT: DEMOCRATS, REPUBLICANS, AND THE DECLINE OF MIDDLE-CLASS PROSPERITY 104-123 (1993) [hereinafter PHILLIPS, BOILING POINT]; KEVIN PHILLIPS, THE POLITICS OF RICH AND POOR 76-86 (1990); Allen D. Manvel, Comparing Tax Burdens of American Families, 10 TAX NOTES 1133, 1133-34 (1988). The federal income tax is the reason there is any tendency toward progressivity, so as the federal tax becomes flatter the system as a whole becomes less progressive. See Manvel, supra, at 1134. Overall, whether or not taxes are redistributive varies depending on how much the state and local taxes are regressive. For some evidence on the progressivity of state and local taxes, see NORMAN R. LUTTBEG, COMPARING THE STATES AND COMMUNITIES 104-14 (1992); PHILLIPS, BOILING POINT, supra, at 114-27.
361. See KARL CASE & RAY FAIR, PRINCIPLES OF MICROECONOMICS 444 (3d ed. 1994); CONGRESSIONAL BUDGET OFFICE, THE CHANGING DISTRIBUTION OF FEDERAL TAXES 1975-1990, at 48 (1987); KEVIN PHILLIPS, BOILING POINT: DEMOCRATS, REPUBLICANS, AND THE DECLINE OF MIDDLE-CLASS PROSPERITY 104-123 (1993) [hereinafter PHILLIPS, BOILING POINT]; KEVIN PHILLIPS, THE POLITICS OF RICH AND POOR 76-86 (1990); Allen D. Manvel, Comparing Tax Burdens of American Families, 10 TAX NOTES 1133, 1133-34 (1988). The federal income tax is the reason there is any tendency toward progressivity, so as the federal tax becomes flatter the system as a whole becomes less progressive. See Manvel, supra, at 1134. Overall, whether or not taxes are redistributive varies depending on how much the state and local taxes are regressive. For some evidence on the progressivity of state and local taxes, see NORMAN R. LUTTBEG, COMPARING THE STATES AND COMMUNITIES 104-14 (1992); PHILLIPS, BOILING POINT, supra, at 114-27.
362. See James V. Delong, New Wine for a New Bottle: Judicial Review in the Regulatory State, 72 VA. L. REV. 399, 410-22, 426-27, 435-36 (1986) (describing how agencies can act independently of Congress and the executive branch); Michael E. Levine & Jennifer L. Forrence, Regulatory Capture, Public Interest, and the Public Agenda: Toward a Synthesis, 6 J.L. ECON. & ORG. 167 (1990) (describing works on the inability of voters or their intermediaries to limit or control regulation).
363. See James V. Delong, New Wine for a New Bottle: Judicial Review in the Regulatory State, 72 VA. L. REV. 399, 410-22, 426-27, 435-36 (1986) (describing how agencies can act independently of Congress and the executive branch); Michael E. Levine & Jennifer L. Forrence, Regulatory Capture, Public Interest, and the Public Agenda: Toward a Synthesis, 6 J.L. ECON. & ORG. 167 (1990) (describing works on the inability of voters or their intermediaries to limit or control regulation).
364. See WILLIAM JULIUS WILSON, THE TRULY DISADVANTAGED: THE INNER CITY, THE UNDERCLASS, AND PUBLIC POLICY (1987); John Charles Boger, Race and the American City: The Kerner Commission in Retrospect - An Introduction, 71 N.C. L. REV. 1289, 1309-13 (1993); Douglas S. Massey, Getting Away with Murder: Segregation and Violent Crime in Urban America, 143 U. PA. L. REV. 1203, 1206-07 (1995); Michael H. Schill & Susan M. Wachter, The Spatial Bias of Federal Housing Law and Policy: Concentrated Poverty in Urban America, 143 U. PA. L. REV. 1285, 1286-90 (1995).
365. See WILLIAM JULIUS WILSON, THE TRULY DISADVANTAGED: THE INNER CITY, THE UNDERCLASS, AND PUBLIC POLICY (1987); John Charles Boger, Race and the American City: The Kerner Commission in Retrospect - An Introduction, 71 N.C. L. REV. 1289, 1309-13 (1993); Douglas S. Massey, Getting Away with Murder: Segregation and Violent Crime in Urban America, 143 U. PA. L. REV. 1203, 1206-07 (1995); Michael H. Schill & Susan M. Wachter, The Spatial Bias of Federal Housing Law and Policy: Concentrated Poverty in Urban America, 143 U. PA. L. REV. 1285, 1286-90 (1995).
366. See WILLIAM JULIUS WILSON, THE TRULY DISADVANTAGED: THE INNER CITY, THE UNDERCLASS, AND PUBLIC POLICY (1987); John Charles Boger, Race and the American City: The Kerner Commission in Retrospect - An Introduction, 71 N.C. L. REV. 1289, 1309-13 (1993); Douglas S. Massey, Getting Away with Murder: Segregation and Violent Crime in Urban America, 143 U. PA. L. REV. 1203, 1206-07 (1995); Michael H. Schill & Susan M. Wachter, The Spatial Bias of Federal Housing Law and Policy: Concentrated Poverty in Urban America, 143 U. PA. L. REV. 1285, 1286-90 (1995).
367. See WILLIAM JULIUS WILSON, THE TRULY DISADVANTAGED: THE INNER CITY, THE UNDERCLASS, AND PUBLIC POLICY (1987); John Charles Boger, Race and the American City: The Kerner Commission in Retrospect - An Introduction, 71 N.C. L. REV. 1289, 1309-13 (1993); Douglas S. Massey, Getting Away with Murder: Segregation and Violent Crime in Urban America, 143 U. PA. L. REV. 1203, 1206-07 (1995); Michael H. Schill & Susan M. Wachter, The Spatial Bias of Federal Housing Law and Policy: Concentrated Poverty in Urban America, 143 U. PA. L. REV. 1285, 1286-90 (1995).