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When courts and commentators discuss Pennsylvania Coal Co. v. Mahon, they use the same word with remarkable regularity: famous. Mahon has achieved this fame in part because it was the occasion for conflict between judicial giants, and because the result seems ironic. Justice Oliver Wendell Holmes, Jr.--the great Lochner dissenter and a jurist generally considered a champion of judicial deference to legislatures in the sphere of economic decision-making--wrote the opinion striking down a Pennsylvania statute barring coal mining that could cause the surface to cave-in. Sharply dissenting from Holmes's opinion was his consistent ally on the Court, Justice Louis Brandeis.

The Mahon decision is also famous because it has become a virtual surrogate for the original understanding of the Takings Clause. Even though it is generally accepted that the Takings Clause was originally understood to apply only to physical seizures of property, the case law has now firmly established that it applies to government regulations as well. Mahon has satisfied the need of the law has grown, so has the amount of attention paid to this always prominent case.

Part I of this article briefly presents the opinions in Mahon. Part II summarizes the competing schools of thought on the case's place in takings history and the test Holmes employed, and discusses the general consensus that Mahon is a case protective of property rights. Part III presents the groundwork for an alternative account by reviewing the pre-Mahon case law (other than Holmes's decisions), highlighting the generally overlooked cases involving regulation of businesses affected with a public interest. Part IV analyzes Holmes's decisions prior to Mahon and argues that those decisions reflect a constitutional property jurisprudence that was both internally coherent and at odds with the era's Supreme Court case law. Part V then shows how Mahon reflects Holmes's unique and deeply innovative acceptance of deferential balancing. Finally, part VI discusses why Mahon has become so central to our takings jurisprudence and examines how a proper understanding of Holmes's views would sharply alter current case law.

Publication Citation

86 Geo. L.J. 813-874 (1998)