In his article for Journal of Land Use & Environmental Law, Manatt Appellate Senior Counsel Michael Berger discussed why Penn Central should be removed from the takings canon.
In Penn Central Transportation Co. v. New York City, the Supreme Court sought to explain how to apply the Takings Clause of the Fifth Amendment to government regulations of property. But the decision was unclear and has confused judges and lawyers ever since. Berger explained that the Court has not provided clear guidance on its decision even decades later despite recognizing the case as a “polestar.” Required compensation for any taking protects citizens from government actions under the Fifth Amendment which “does not differentiate among different flavors of takings, providing compensation for some but not for others.” However, since the Court separated takings into a variety of categories, a claim identified under a certain category but later found to belong to a different one could be subjected to a different kind of analysis.
“Penn Central isn’t working and it can’t be fixed. The way to put all of us—judges, regulators, and property owners alike—out of the misery of trying to deal with it is for the Supreme Court to bite the bullet and eliminate it,” wrote Berger. As a solution, he recommended that juries should be trusted to appropriately examine the evidence of a case and determine whether a government taking has occurred, rather than allowing judges to engage in this role.