A REQUIEM FOR REGULATORY TAKINGS: RECLAIMING EMINENT DOMAIN FOR CONSTITUTIONAL PROPERTY CLAIMS.

• Author: Wright, Danaya C.

1. INTRODUCTION 308 II. THE INDETERMINATE LIMINAL SPACE OF REGULATORY TAKINGS 312 III. FUNDAMENTAL INCONGRUITIES: THE MUDDLED MESS OF REGULATORY TAKINGS 321 A. Irreconcilable Differences in Jurisprudential Philosophy 324 B. Justice Scalia's Discursive Move to Undermine Traditional Nuisance Law 335 C. Lochner, Lingle, and the Revival of Substantive Economic Due Process 339 IV. A WAY FORWARD 344 A. Eminent Domain Has a Long Record of Balancing the Police Power and Private Property 346 B. Reject Natural Rights Ideology 354 C. Reinvigorate the Harm/Benefit Distinction in Nuisance and Rethinking Lingle 364 D. Require a Cognizable Property Right and an Act of Appropriation 366 E. Balance the Benefits and Burdens 372 VI. CONCLUSION 375 I. INTRODUCTION

   For property scholars, writing about the Takings Clause of the Constitution is a bit like English scholars writing about Shakespeare. It signals that one has reached an academic milestone and is prepared to tackle one of the most confounding legal doctrines facing the courts. But unlike the Shakespeare scholar who has 37 plays and 154 sonnets to work with, takings scholars have only those epigrammatic twelve words, "nor shall private property be taken for public use without just compensation," (1) and the framers left us with virtually no helpful guidance, interpretive principles, or even an alphabetical concordance. (2) Wandering in the dark, the courts issue ambiguous opinions, scholars opine endlessly on the abstruse arguments contained therein, then judges and their clerks read the labyrinthine scholarship, only to rely on out-of-context quotations and obscure principles in writing their bewildering and often incomprehensible opinions. This academic feedback loop is taken to extremes in Supreme Court scholarship and the high Court's opinions on the doctrine of regulatory takings. (3)

   A regulatory taking is deceptively simple: it occurs when a government regulation of property goes too far in affecting property rights or values and requires compensation to support it. (4) But what constitutes property, what constitutes a regulation, and when does the effect of the regulation go too far are questions that have spawned hundreds of books and articles, thousands of judicial opinions, and still we are left with more questions than answers. One of the reasons for the sheer quantity of scholarship on the subject is that, with each Delphic pronouncement from the Court, the foundations shift, the questions change, and if one issue is resolved five more are raised. In large part, the doctrine is a mess because the Court has created a constitutional doctrine out of whole cloth just in the past forty years, (5) and in that time it has rejected most of the common law's long-standing principles, as though regulations negatively affecting property are a novel phenomenon. (6)

   With countless scholars weighing in, it is not as though the world needs another article on the Takings Clause. Yet here I offer one, in part to show that I have reached that academic milestone, and in part to suggest that perhaps the lack of comprehensible resolution in the doctrine indicates that the experiment has failed. Perhaps more accurately, it is time to lay the doctrine to rest, sing a requiem, release our clods of dirt onto the hollow casket, and find a different approach to balancing the interests of private property with the public welfare. Like the demise of substantive economic due process eighty-five years ago, (7) the past forty years have shown once again that laissez-faire economics cannot support a legal doctrine of fundamental property rights. The law, and property rights, must grow and change with the public welfare, new technologies, and environmental pressures. This Article explores the doctrine's complex indeterminacy and the philosophical tensions at its roots with an eye toward finding a different path, away from constitutional law and in the direction of the common law's expansive pantheon of eminent domain. (8)

   In the Court's most recent regulatory takings decision, the 2017 ruling in Murr v. Wisconsin, (9) Justice Thomas became the first conservative on the Court to admit that there is no originalist justification for the regulatory takings doctrine. (10) Historians, (11) scholars, (12) and liberal jurists (13) have accused conservatives, for at least the last thirty years, of supporting a pro-property rights agenda under the Takings Clause that has no textual or historical basis. Yet rejecting originalism gets the Court nowhere. The supreme irony seems to be that regulatory takings is a solution in search of a problem where few can agree on the details of either the solution or the problem. Hopefully the decision in Murr is a wake-up call that we are trapped in the time warp of Lochnerism. (14) But can we stop this ride and get off?

   In the wake of unprecedented natural disasters, from Superstorm Sandy and Hurricanes Katrina, Harvey, Irma, and Maria, to the California wildfires and sea-level rise, our natural world is not waiting for the Court to come up with a solution to how we balance private property rights with the public welfare. (15) And in this day of political partisanship and government dysfunction, the planet is not going to idly wait for humans to stop sniping at each other and invent a constitutional doctrine that soundly balances the interests of public and private property. To the extent ill-conceived regulatory takings doctrines result in chilling government action that might actually improve, or at least forestall, the deterioration of our lived environment, many truly feel that the Court is fiddling while Rome burns. (16)

   In this Article I argue that regulatory takings will continue to be an incoherent, dysfunctional mess because of fundamental differences in how the Justices view both property rights and the proper scope of government action. The irreconcilable tensions within the Court lead me to argue that it should reject regulatory takings as a constitutional doctrine and turn back to the common law of eminent domain. Even a cursory study of nineteenth-century eminent domain cases reveals that the courts of that day faced legal issues that were just as complex as those we face today, and those courts used nuisance and eminent domain to balance the interests of private property rights and the public welfare. Examining those cases, resurrecting nuisance from Justice Scalia's discursive elision, (17) and embracing the tried and true common-law rules of property, can offer a path forward out of the regulatory takings impasse. And by limiting eminent domain to recognizable property rights, the Court can seize the opportunity to realign our constitutional protection of property and economic rights that Justice Thomas's concession has provided and perhaps avoid the economic crisis that precipitated the last major realignment in the Court's property jurisprudence nearly a century ago. (18)

2. THE INDETERMINATE LIMINAL SPACE OF REGULATORY TAKINGS

   The Fifth Amendment of the Constitution provides protection for private property in two distinct provisions, the Due Process Clause and the Just Compensation Clause. (19) The amendment reads, "No person shall be... deprived of life, liberty, or property without due process of law; nor shall private property be taken for public use without just compensation." (20) The Fourteenth Amendment prohibits the deprivation of property without due process by the states, but it does not include a just compensation clause. (21) These provisions are generally interpreted to provide protections against arbitrary and unreasonable government regulation through the Due Process Clause, and against direct appropriation through the Just Compensation Clause. (22)

   The traditional scholarly narrative, which has been generally adopted by the Court, holds that in its first 130 years, the Just Compensation Clause applied only when government actually appropriated or took title to land. (23) During this time, courts ordered compensation only when land itself was appropriated by eminent domain, and the Fifth Amendment was understood to impose a duty of compensation on governments that had, prior to 1791, generally not been held to such a duty. (24) No colonial charter or state constitution had a just compensation provision, although some provided procedural safeguards by requiring that appropriation be "by the Lawfull [sic] Judgment of [one's] peers and by the Law of this province." (25) The historical consensus seems to be that because there were virtually no compensation protections for property prior to adoption of the Bill of Rights, the Constitution imposed a relatively new duty of compensation as a way to protect private property from direct governmental appropriation. (26) The Constitution also imposed procedural safeguards through the Due Process Clause for other government limitations to property. (27) Even still, not all states had to provide compensation until the requirement of just compensation was incorporated to apply to the states through the Fourteenth Amendment's Due Process Clause in 1897, although by then many states had just compensation provisions in their own constitutions. (28)

   Although the historical evidence is contested and ambiguous, we can accurately say that there was precedent for not paying compensation even for a direct physical appropriation of land or personal property, and there were lots of uncompensated land-use regulations of the type that today would likely invoke a regulatory taking claim. (29) But there was also precedent that the colonies and states paid compensation both for physical appropriations in some cases, and for regulatory actions that would qualify as takings under today's doctrine. (30) There were competing views throughout the nineteenth century about the origins of property rights and whether the state's police power extended so far that it could limit or completely destroy private...