My task in this Article is to show the wisdom of the Siegan position by stressing what happens when courts decide systematically to ignore it in favor of a constitutional view that is far closer to that of Robert Bork insofar as it gives the legislature free reign over both economic liberties and property rights. I cannot do this with respect to the full range of issues that crop up under these two capacious heads. But it is possible to show how a wide range of unsound judicial decisions have created a perfect storm in land use regulation that has done much to harm the vitality of land development in the United States. Part I of this Article identifies the confluence of factors that leads to the creation of this perfect storm. Part II then examines the key elements of the basic mixture, covering those which make private development more costly and those which reduce the cost of using the eminent domain power. Part III then looks at five recent decisions that illustrate how these elements work together in actual cases. Part IV concludes with a brief discussion of the connection between these modern developments and the inquiry into the original meaning of the Constitution.
Richard A. Epstein,
Property Rights, Public Use, and the Perfect Storm: An Essay in Honor of Bernard H. Siegan,
San Diego L. Rev.
Available at: https://digital.sandiego.edu/sdlr/vol45/iss3/2