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Lingle v. Chevron U.S.A. Inc. is a highly unusual decision in that it repudiated a legal doctrine that the Supreme Court itself had created. The Court was able to do this without overruling any prior decision because the repudiated doctrine-which condemned as a taking any regulation of property that fails to "substantially advance legitimate state interests" – had taken hold in the lower courts but had never been applied by the Court itself in support of a judgment. Lingle is also unusual in that there is no indication that the Court was motivated to jettison the doctrine because it was unhappy with the result it suggested in the case before it. From all that appears, the Court was concerned solely with rationalizing the law of takings.

I take as my text the following wrap-up sentence from Justice O'Connor's opinion for the Court in Lingle: "We hold that the "substantially advances" formula is not a valid takings test, and indeed conclude that it has no proper place in our takings jurisprudence." The first half of this sentence, I think, is correct. There should be no facial takings "test," analogous to the categorical rules for permanent occupations or complete eliminations of economic value, that deems a regulation that fails to substantially advance any legitimate state interest a taking. This is the way that the Ninth Circuit had come to regard the "substantially advances" idea, and the Court was right to repudiate that approach.

The second half of the sentence, that the "substantially advances" inquiry has "no proper place" in takings jurisprudence, I think is not correct, or at least the Court failed to make the case for its correctness. In particular, I see no reason in principle why the question of whether a particular regulation substantially advances a legitimate governmental interest might not qualify as one of the "factors" that courts consider in conducting the "essentially ad hoc, factual inquiries" that Penn Central mandates as the general default inquiries in takings cases.' The Court has never seriously deliberated about which factors are most probative and hence most appropriate for inclusion in an ad hoc inquiry, and certainly it did not do so in Lingle. Absent a more sustained inquiry about the proper content of the ad hoc inquiry, I think the Court was mistaken to banish "substantially advances" from the world of takings jurisprudence without giving it a fair hearing, so to speak, as to whether it might be given a reprieve in this reduced role.


Law | Property Law and Real Estate