The essence of the infamous three-factor Penn Central test for whether a restriction on the use of private property under the police power “goes too far” and is treated as a de facto exercise of eminent domain is the Court’s admonition that the takings question is resolved by “essentially ad hoc, factual inquiries,” and not, generally speaking, by the application of categorical rules. To quote the unanimous Court (in an opinion authored by Justice Ginsburg), there is no “magic formula” to determine “in every case, whether a given government interference with property is a taking,” because “of the nearly infinite variety of ways in which government actions or regulations can affect property interests.” Thus, there are “few invariable rules in this area.”…
Continue Reading CA9, 2-1: We Have A Magic Formula To Resolve Penn Central’s “Ad Hoc, Factual Inquiry” On 12(b)(6) In Every Case