Lynn E Blais

For almost thirty-five years, the U.S. Supreme Court has attempted to carve out a total takings doctrine within its regulatory takings jurisprudence.  Most regulatory takings claims are evaluated under the ad hoc three factor test first articulated in Penn Central Transportation Co. v. City of New York. Exceedingly few of these claims are successful. But the Court has identified certain categories of government actions that are compensable takings per se, otherwise known as total takings. Since 1982 the Court has held that a per se total takings occurs when: (1) a land use ordinance requires a landowner to endure a permanent physical occupation of a portion of her property; (2) a land use restriction deprives an owner of all economically viable use of her property; or (3) the government appropriates personal property.

Although the Court has had more than three decades to articulate theoretical justifications for its total takings jurisprudence and to provide guidance for lower courts in determining when a regulation constitutes a total taking, it has failed to do so. This failure reflects the underlying reality that the total takings doctrine is a myth. More particularly, the categories that the Court has identified as constituting total takings are analytically incoherent, and the terms the Court uses to demarcate total takings from regulations that are not per se compensable cannot be applied in the real world.

This Article argues that the Court’s attempt to create a total takings doctrine has failed, and that the Court should repudiate it.