Problem of Equality in Takings, The

INTRODUCTION After decades of confusion, the Supreme Court in a recent series of decisions has begun to bring clarity to the law of regulatory takings.1 In doing so, the Court is bringing to the fore a previously submerged theme in the jurisprudence-what this Article calls the equality dimension of regulatory takings law. TMs equality dimension paradigmatically asks whether a regulation has forced "some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole."2 Despite the seeming appeal and near-universal acceptance of this proposition, this Article argues that privileging equality in the jurisprudence of regulatory takings raises serious theoretical and doctrinal problems. The rise of equality norms is a function of the Court's recent moves to narrow or eliminate other long-standing aspects of the jurisprudence. For all of the elaborate apparatus of per se and multifactor ad hoc tests it has constructed, the Court has drawn on three central approaches to answer the question of which regulations go "too far" under the Takings Clause.3 One approach has been to consider certain regulations functionally equivalent to the affirmative exercise of eminent domain, focusing primarily on the touchstones of tangible interference with physical property and diminution in the value of property.4 The second approach has been to engage in means-ends analysis akin to substantive due process review, evaluating the balance between regulatory goals and individual harm.5 And, as noted, the final approach has been grounded in equality norms, comparing the burden of the regulation on the challenging party to that imposed on similarly situated owners.6 As to the first approach, the Court has increasingly diminished the practical importance of the trope of functional equivalence, almost to the point of irrelevance. In particular, the Court has rejected conceptual severance-the idea that the impact of a regulation should be evaluated in light of the burden it places on a particular "slice" of property or stick in the proverbial bundle of rights.7 In so doing, the Court has made it increasingly difficult for property owners to bring claims that general regulations operate as the functional equivalent of a direct exercise of eminent domain, as most regulations leave some or significant value.8 Some claims will no doubt continue to raise questions of deprivation of all economically beneficial uses of property, permanent physical occupation, and other unusual interference with property. In practice, however, such regulatory burdens are rare. As to the second approach, the Court has even more directly excised means-ends analysis from the corpus of regulatory takings. In its recent decision in Lingle v. Chevron U.S.A. Inc.,9 the Court held that inquiries into whether a regulation is justified by legitimate state interests have "no proper place in our takings jurisprudence."10 In so doing, the Lingle Court untangled regulatory takings jurisprudence from its long and unfortunate embrace with substantive due process. Together, the muting of functional equivalence and the end of means-ends analysis are bringing the third, equality-based, approach, increasingly to the fore.11 This emerging equality dimension, which has previously been submerged in practice, enjoys broad scholarly support. As David Dana and Thomas Merrill note, "[t]he equal treatment justification remains today the most widespread explanation for the compensation requirement."12 Despite this consensus, the equality dimension of regulatory takings has thin theoretical grounding and troubling doctrinal consequences.13 From a theoretical perspective, privileging norms of equality engrafts political process rationales for heightened judicial scrutiny onto a "minority" defined only by the differential burden of a regulation. In other words, identifying a group of property owners for the purpose of asserting political process failure solely by differential effects on their property interests is plain circularity. …