Abstract
Recent Supreme Court decisions recognizing regulatory takings, most notably Lucas v. South Carolina Coastal Council, have added considerable fuel to the ongoing debate over the meaning of the Takings Clause of the U.S. Constitution. The decisions have also precipitated a deluge of scholarly writing on the issue. These analyses have been largely historical, focusing not upon the genesis and subsequent conceptual development of regulatory takings, but upon the adjudicatory and practical merits of competing constitutional interpretations. Most commentators have simply assumed that the law of regulatory takings (or what may be more broadly termed "nonacquisitive, nondestructive" takings) began with the landmark decision of Pennsylvania Coal Co. v. Mahon, involving Pennsylvania's Kohler Act of 1921. The Act prohibited the mining of coal that would cause the subsidence of surface structures. Justice Holmes, writing for the Court, maintained that the legislation amounted to a constitutionally cognizable taking of mineral rights without compensation and set forth the amorphous maxim that "if regulation goes too far it will be recognized as a taking." Thus was born, it is commonly supposed, the notion of a government taking absent actual physical possession, occupation, or destruction of property.
Recommended Citation
Kobach, Kris W.
(1996)
"The Origins of Regulatory Takings:
Setting the Record Straight,"
Utah Law Review: Vol. 1996:
No.
4, Article 2.
Available at:
https://dc.law.utah.edu/ulr/vol1996/iss4/2