Basic Themes For Regulatory Takings Litigation

J. Peter Byrne, Georgetown University Law Center


There is probably no area of law that is as fraught with confusion and inconsistencies as the regulatory takings doctrine. In this Article, Professor Byrne summarizes arguments, called "litigation themes," that can be made to help circumnavigate the many pitfalls and quagmires that await takings liti-gators as a result of this confusion. The Article argues that the Fifth Amend-ment's Takings Clause was never meant to apply to the regulation of property, but only to physical or legal appropriations. Professor Byrne suggests that the Due Process Clauses or the Equal Protection Clause are equally capable of resolving the conflicts that result from the regulation of property that have traditionally been examined under the Takings Clause. The litigation themes discussed in this Article are a means to shift regulatory takings arguments away from the Takings Clause toward the Due Process Clauses or the Equal Protection Clause.