Last term, the Court had a perfect opportunity to begin the process of repudiating the total takings myth. Although bright-line rules have their place, it is not in the heart of regulatory takings doctrine, which is premised on concerns for fairness and justice in distributing the burdens of land use regulation. This Article also explains why the entire enterprise was misguided from the start. And it shows that attempts by lower courts to rehabilitate the doctrine by crystallizing the bright-line rules through careful and consistent application were doomed to, and did, fail. It demonstrates that the Court’s initial total takings opinions were conceptually incoherent and woefully undertheorized. This Article argues that the Court’s attempt to create a total takings doctrine has failed, and that the Court should repudiate it. In fact, lower courts have resorted to creating “shadow” total takings doctrines that rely on obvious distortions of the plain meaning of outcome-determinative terms and deflect attention from the fundamental question of whether compensation is warranted. As a result, lower courts struggle to apply the total takings doctrine and the case law remains in utter disarray. More particularly, the categories that the Court has identified as constituting total takings are analytically incoherent, and the terms the Court has used to demarcate total takings from regulations that are not per se compensable cannot be applied in the real world. This failure reflects the underlying reality that the total takings doctrine is a myth. Although the Court has had more than three decades to articulate theoretical justifications for its total takings jurisprudence and to provide guidance for lower courts in determining when a regulation constitutes a total taking, it has failed to do so. Department of Agriculture, the Court extended its total takings jurisprudence to personal property, announcing that the government appropriation of personal property is a per se compensable taking. South Carolina Coastal Council, the Court held that a land use restriction depriving an owner of all economically viable use of her property is also compensable per se. Teleprompter Manhattan CATV Corp., where the Court held that a land use ordinance requiring a landowner to endure a permanent physical occupation of a portion of her property is always a compensable taking. But the Court has identified certain categories of government actions that are compensable takings per se, otherwise known as total takings. Exceedingly few of these claims are successful. Most regulatory takings claims are evaluated under the “ad hoc” threefactor test first articulated in Penn Central Transportation Co. Supreme Court has attempted to carve out a total takings doctrine within its regulatory takings jurisprudence. One person was at the center of three prominent property cases.For almost thirty-five years, the U.S. Teleprompter Manhattan CATV Corporation, opposite Erwin Griswold. And he argued before the Supreme Court on behalf of the petitioner in Loretto v. Gruen helped to draft the landmark preservation laws that the Supreme Court were upheld in Penn Central Transportation Co. Schloss Kammer am Attersee IIĪnd thus, Michael Gruen secured his place in the property law canon. The New York Court of Appeals held that the father's conveyance was a valid inter vivos gift of a future interest in the painting. Michael, who was an attorney, litigated the case pro se, and he prevailed. Kemija argued that the conveyance was invalid testamentary gift. After Victor's death, his wife, Kemija Gruen, refused to give the painting to her stepson, Michael. In this case, Victor Gruen owned a valuable Gustav Klimt painting, "Schloss Kammer am Attersee II." Victor conveyed an interest in the painting to his son, though Victor would keep the painting during his life. Gruen, a New York Court of Appeals decision from 1986. Several leading property casebooks include Gruen v.
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