Faculty Profile: Lynn E Blais
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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.
Professor Blais teaches Administrative Law, Environmental Law, and Property. Her research focuses on the allocation of property rights and natural resources, and the decision-making processes underlying these allocations. During her tenure at Texas Law she has served as Associate Dean of Academic Affairs and has been instrumental in establishing three clinics: the Capital Punishment Clinic, the Environmental Law Clinic, and the Supreme Court Clinic. She served as a Co-Director of the Supreme Court Clinic for 10 years. Her articles have appeared in such journals as the Fordham Law Review, the Texas Law Review, the University of Illinois Law Review, and the Southern California Law Review.
Before joining the Texas faculty in 1991, Professor Blais served as a law clerk to the Honorable Harry A. Blackmun of the United States Supreme Court and the Hon. Wm. Wayne Justice of the United States District Court for the Eastern District of Texas. She also practiced environmental law with the public interest firm Hall & Phillips in Los Angeles.