Professor Costonis presents a decisional model for the judicial management of compensation practice under the takings clause that comprehends both physical and regulatory incursions. The model contains four elements: a commitment to presumptions rather than per se rules to determine whether property has been taken; a due process-takings phase, in which conflicts between welfare and indemnification concerns are mediated through application of the just share principle; a pure takings phase, in which a measure's fairness in operation is assessed; and a sliding scale to key government's burden of proof in justifying a particular measure in light of the values implicated by the measure. Professor Costonis identifies major developments in modern takings jurisprudence that prefigure the model, and he argues that the per se test adopted by the Supreme Court in Loretto v. Teleprompter Manhattan CATV Corp. fails to accord with these trends. He concludes that the decisional model should replace both Loretto's per se test and the multifactor balancing test used to decide regulatory takings cases.
Due process of law, Eminent domain
Date of Authorship for this Version
Costonis, John, "Presumptive and Per Se Takings: A Decisional Model for the Taking Issue" (1983). Journal Articles. 70.