Palazzolo and the Decline of Justice Scalia's Categorical Takings Doctrine

Abstract

This Article maintains that despite the fact that the Palazzolo decision gave the landowner victories by relaxing ripeness hurdles to filing takings cases and rejecting the government’s “notice rule”—under which the existence of preexisting regulations would defeat takings claims—the chief significance of the case is the Court’s signal that it will reject attempts to expand categorical rules in takings cases. According to this view,Palazollo will be remembered for the decline of Justice Scalia’s categorical approach to takings, as reflected in his Lucas opinion, and for the triumph of multi-factor balancing championed by Justice Brennan’s Penn Central opinion. A postscript to the Article contends that the Court’s Tahoe-Sierra decision, decided while the Article was in press, confirms these predictions.