Palazollo and the Decline of Justice Scalia's Categorical Takings Doctrine

Abstract

This article maintains that despite the fact that the Supreme Court's decision in Palazollo v. Rhode Island gave the landowner victories by relaxing ripeness hurdles to filing constitutional takings cases and reject the government's notice rule defense - under which the existence of preexisting regulations would defeat takings claims - the chief significance of the decision was the Court's signal that it would reject attempts to expand categorical rules in takings cases.

Under this view, Palazollo will be remembered for the decline of Justice Scalia's categorical approach to takings, as reflected in his Lucas v. South Carolina Coastal Commission decision, and for the triumph of multi-factor balancing championed by Justice Brennan's Penn Central v. City of New York opinion. A postscript to the article contends that the Court's Tahoe-Sierra Preservation Council v. Tahoe Regional Planning Agency decision, which was decided while the article was in press, confirms these predictions.

Keywords: constitutional law, property, land use, takings, environmental law

JEL Classification: K11, K32, O13