Below is the abstract for “Takings, Original Meaning, and Applying Property Law Principles To Fix Penn Central,” available for download on SSRN.
This article contends that the term “property” as used in the Takings Clause is a group of rights, the essential being the right to possess, the right to exclude others, the right to alienate, and most saliently, the right to beneficial use. Contrary to assertions that the Takings Clause was originally limited to direct appropriations or physical takings, many early 19th century cases found takings based on destruction of the right of beneficial use, cases that today we would call regulatory takings. The development of takings jurisprudence leading to Pennsylvania Coal Company v. Mahon is based on protection of these rights. By focusing on the essential rights that define property, and drawing on the early takings jurisprudence and the doctrinal correction embodied in Lingle v Chevron USA, this article proposes a takings framework based on formal or functional transfer of rights, rather than diminution in value.