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The thesis of this Article is that the Court of Federal Claims and the Court of Appeals for the Federal Circuit have become exposed to this classic critique of constitutional decision-making through the recent expansions of the regulatory takings doctrine. Though the chief agent for this expansion has been the Supreme Court, these lower courts have made their own prominent contributions to broadening regulatory takings, and they are far more vulnerable to political reprisals. Like the Due Process Clause in the gilded age, the Takings Clause today can easily be and has been seen as an avenue for inappropriate judicial protection of established wealth and commercial practices frustrating legitimate efforts at reform. Courts addressing claims of regulatory takings should proceed with caution, practice available "passive virtues," and ground decisions firmly in precedent and established constitutional values. This Article will first examine the elements of substantive due process that led to decisions invalidating social welfare legislation and becoming notorious for judicial overreaching. This Article will then show how decisions expanding the regulatory takings doctrine share very similar characteristics. Finally, it will offer some suggestions about how judges concerned about real or apparent overreaching should approach regulatory takings issues.

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51 Ala. L. Rev. 949-961 (2000)