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The constitutional right to compensation for a governmental taking of property is relatively easy to apply in situations involving a straightforward, physical appropriation of land for a public use like a highway. However, difficulties arise when governmental action consists only of rules that limit an owner's use of land. In most situations, these limits are viewed as burdens an individual is properly subject to as a citizen and land owner. From this perspective, the exercise of the "police power" of the government, which has traditionally been used to prohibit public and private harms, does not usually involve a taking of property, even if the restriction involved results in a substantial loss in the economic value of the land. However, some restriction on land use are unwarranted or too extensive and, therefore, constitute a "regulatory taking." Compensation is required in such cases, because the cost should be borne by the public as a whole. The problem is thus one of line-drawing: How does one distinguish mere regulation from a regulatory taking? This Article argues that no bright-line test can be devised for identifying a regulatory taking because (1) the situations involving potential regulatory takings are too diverse; and (2) there is no cultural consensus on the proper way to balance two opposing sets of values, the values furthered by the individual right to use property and the values served by governmental regulation of the property. Because it is not possible to craft a clear definite rule, a value symbolic standard may be the best that can be expected of judges. In such cases, a vague, imprecise "rule" which provides a structure for addressing specific circumstances in the context of a fair process will be a better way to address a problem than a clear formal substantive rule that does not respect factual distinctions that are important to differing value schemes.


Originally published by Nebraska Law Review and republished here with their permission.

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