The Regulatory Taking Conundrum

By: Michael M. Berger
– Daily Journal

In his latest "Takings Talk" column for Daily Journal, Manatt Appellate Senior Counsel Michael Berger explored the implications of what Supreme Court Justice Clarence Thomas meant when he said, "If there is no such thing as a regulatory taking, we should say so. And if there is, we should make clear when one occurs."

In a dissent from a denial of certiorari in Bridge Aina Le'a v. State of Hawaii Land Use Commission, the particulars of what constitute a regulatory taking were disputed. Berger commented that "even the Supreme Court (as Justice Thomas hints) has had some difficulty in deciding when and how such a taking of property occurs," as justices have historically struggled to specify what it means when a regulation "goes too far."

Daily Journal subscribers can read the full article here.

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