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2010] Derailing Penn Central 885
III.
An Exploration of Post-Lingle Takings Jurisprudence
With the potential death of Penn Central’s character prong and
the Supreme Court’s previous wavering between per se rules and balancing
tests, one can only hypothesize how the Court will approach
future claims of regulatory takings. This Part begins by assessing the
Court’s most likely approach, which is the continued and unaltered
application of the Penn Central balancing test as though Lingle never
occurred. After concluding that this approach is deficient, this Note
examines an alternative approach. The merits of this second approach,
which is an abandonment of Penn Central and a resort to the
per se rules of Lucas and Loretto, are also examined, and this Note
ultimately concludes that this approach is also inadequate.
A. Option Number One: Stubbornness
If history is any indication of which approach the Court will take,
it will likely continue to apply Penn Central’s ad hoc balancing test.
The Court has been reluctant to abandon Penn Central, despite past
indications that this approach would be superseded. As mentioned
previously, the per se tests of Lucas and Loretto were once believed
by some to represent an effort to replace Penn Central as the sole
methods of analysis. 89 Nevertheless, the Court returned to its “polestar”
in subsequent regulatory takings inquiries. 90
Therefore, it would come as little surprise if the Court continued
to apply the Penn Central balancing test as though Lingle had not undermined
it, just as it continued to apply Penn Central following Lucas
and Loretto. 91 Advocates of this approach argue that Lingle left the
character prong unscathed. 92 These advocates interpret Lingle narrowly
and view the Court as holding only that a regulation’s failure
under a substantive due process analysis does not require the government
to give just compensation. 93
89 See supra notes 34–40 and accompanying text.
90 See Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l Planning Agency, 535 U.S. 302, 336
(2002).
91 Another less likely option is that the Court will apply an altered version of the Penn
Central balancing test. This would mean that the Court would acknowledge that Lingle foreclosed
application of the character prong, but would nonetheless apply a simpler version of the
Penn Central balancing test that focuses solely on economic impact and distinct investmentbacked
expectations. See Whitman, supra note 70, at 590 (arguing that the elimination of the
character element of the Penn Central test “simplifies and rationalizes Penn Central in a desirable
way”).
92 See, e.g., Romero, supra note 82, at 365.
93 See id. at 360 (advocating for the position that “[t]he Court’s rejection of the substantial