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Property Rights, Regulatory Regimes and the New Takings Jurisprudence--An Evolutionary Approach, 57 Tennessee Law Review 577 (1990)


The year 1991 will mark the sixty-fifth birthday of one of the Supreme Court's watershed tests of regulatory authority over landed property. That test, which is set forth in Village of Euclid v. Ambler Realty Co., established the legitimacy of local zoning. At the outset, Euclid was something of a cliffhanger; the Court's majority was convinced only at the last minute of the propriety of local zoning regulations. But cliffhanger or not, localities since that decision have relied on Euclid as the central authority for a wide range of controls on private land development—and as a protective screen against the charge that their regulations illegitimately take away the property rights of regulated landowners.

Perhaps because the case was about land, however, and perhaps because land is such a tangible form of property, Euclid has had an important role as a negative symbol as well. Euclid has acted as a kind of lightning rod for those who contest what they perceive as unwarranted governmental intrusion on private property rights. This has particularly been true in recent years. As advocates of private property have enjoyed a certain philosophical and popular revival, they have also put Euclid under siege, precisely because the case appeared to legitimate some of the most visible regulation of property. Thus, the old case's embattlement has created some opportunities to reassess not only the role that we assign to property rights, but also the role we expect from property regulation. In this article, I hope to contribute to that reassessment. My argument is that property on the one hand, and the regulation of property on the other, are aligned in a set of overlapping evolutionary relationships.

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