Is it Time to Reconsider Penn Central?

By: Michael M. Berger
– Daily Journal

In his latest column for Daily Journal, Manatt Appellate Senior Counsel Michael Berger discussed the Supreme Court’s “polestar” case, Penn Central Transportation Co. v. New York City, and the challenges it presents to the interpretation and application of governmental takings cases.  

Berger explained the series of factors to consider when analyzing takings cases that are laid out in Penn Central, which include “the economic impact of the regulation on the property owner, the owner’s distinct investment-backed expectations, and the character of the governmental action.” He noted that issues arise when judges cannot agree on how to apply these factors when determining the nature of governmental takings. He suggested that instead, the jury should analyze the evidence itself rather than attempt to parse out these often ambiguous factors. “The best way to fix the situation is to simply trust juries to do what they have historically done in all sorts of substantive fields: examine all the evidence and determine whether government action has gone so far as to have taken property in the constitutional sense,” he said. 

Daily Journal subscribers can read the full article here.  



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