At Last, Some Clarity: The Potential Long-Term Impact of Lingle v. Chevron and the Separation of Takings and Substantive Due Process
"The primary purpose of this Essay, however, is to argue that a closer look at Lingle reveals that it has tremendous potential to clarify takings doctrine more broadly. Part III discusses this potential, which largely comes from Lingle’s recognition that many of the Court’s early cases involving what today look like regulatory takings issues were in fact concerned with substantive due process issues. Citation to these older cases has caused substantive due process concepts, like the substantially advance test, to bleed into takings law. This cross-pollination has caused difficulty for courts and commentators who have attempted to square these older cases with contemporary takings doctrine. Part III argues that the simple recognition that cases like Village of Euclid v. Ambler Realty Co.7 and Nectow v. City of Cambridge8 were substantive due process cases that should have no meaningful role in takings law goes a long way in clarifying what has been a confusing mass of contradictory caselaw. Part III further argues that the recognition that the substantive due process and regulatory takings doctrines ask different questions leads to the conclusion that the character of the government act should have little or no role in regulatory takings analysis. Taking this broader view of Lingle’s significance suggests that Lingle may have long-term benefits for the property rights advocates who were the putative losers in the case, because property rights advocates have more to gain than takings opponents from the clear separation of substantive due process and takings law. This Essay concludes that by drawing a clear line between substantive due process and takings doctrine, Lingle has the potential to become a very influential decision and to bring a degree of clarity to a muddled area of law."