We continue our series on the 100th anniversary of the mother lode of takings case, Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (Dec. 11, 1922), with this short essay recently published in the “Notice & Comment” feature of the Yale Journal on Regulation.
In “A Landmark Centennial From a Land Marked By the Past,” our law firm colleague Sam Spiegelman tells us why the Mahon case – despite some weathering over the past century – still is important:
For property-rights advocates, Pennsylvania Coal has become both a blessing and a curse. Though it subjects governmental abuses and overregulation to constitutional scrutiny, in practice it has proven too easy to manipulate in favor of government overreach. Why is this? Because Holmes’s “too far” formula focused on the extent of the of harm to the aggrieved individual. But without his saying more, the Supreme Court ran in the opposite direction, measuring whether the government had abused its power—a black-and-white approach that does not fit the fact-intensity of takings cases.
Check out Sam’s entire piece here.