Pennsylvania Coal Co. v. Mahon: Brandeis, in dissent

Since revisiting the majority opinion in this case yesterday, I thought perhaps we should also revisit the dissent…

Disasters, Property, and Politics

Previously, I wrote about the majority opinion in Mahon, authored by Justice Oliver Wendell Holmes, Jr. In short, Justice Holmes wrote that private property could be regulated to a “certain extent”, but that if that regulation went “too far” it would constitute a taking. Subsequent history has taught us that the Supreme Court has read this to mean that all value has to be taken through regulation in order for a taking to exist. We’ll revisit this point when we move into later twentieth century regulatory takings cases. Today, though, I will discuss Justice Brandeis’s response to Justice Holmes’s opinion.

Brandeis was the lone dissenter in this case. His decision has two elements that I find particularly interesting: first, instead of discussing specific “estates” in the land (an “estate” meaning, a legal interest), Brandeis was interested in the way owners “use” the land and how those uses could be…

View original post 1,466 more words

Regulatory Takings: Pennsylvania Coal Co. v. Mahon

A couple of years ago, I was working on a series about regulatory takings cases… Then I started my job at Southeast, and my time was taken up with other work. I’m back at it, though, and so I’ll be revisiting a few of the old posts as I work on my some new ones. Happily, this is coinciding with lecturing on these topics in my undergraduate constitutional law class — always a favorite time of my semester! So, from 2014:

Disasters, Property, and Politics

Why, precisely, did I have so much trouble with takings cases, particularly regulatory takings all those years ago? Why do I still heave a heavy sigh whenever I am faced with a new one? Well, back in the 1980s, when property movements were really getting their litigative feet under them, Carol Rose of Yale Law School wrote a wonderful essay titled, “Mahon Reconstructed: Why the Takings Issue is Still a Muddle.” (52 S. Cal. L. rev. 561, 1983-1984). Indeed, after I read this essay I ended up reading a lot of Professor Rose’s work. This essay, and one of her books in particular, Property and Persuasion: Essays on the History, Theory, and Rhetoric of Ownership shaped my thinking about takings quite a lot (Westview Press, 1994 — it’s out of print now, but if you can find a used copy, I recommend it!).

Since I am not…

View original post 2,257 more words