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52 Santa Clara L. Rev. [i] (2012)

handle is hein.journals/saclr52 and id is 1 raw text is: SANTA CLARA LAW REVIEW VOLUME 52 2012 NUMBER 1 CONTENTS ARTICLES TAKINGS BY REGULATION: How SHOULD COURTS WEIGH THE BALANCING FACTORS? The Fifth Amendment to the Constitution provides that private property may not be taken without just compensation. It does not tell us, however, what kinds of government actions amount to the taking of property. In Penn Central Transportation Company v. New York, the Supreme Court devised a balancing composed of six (or, depend- ing on how one counts them, seven) factors for making this determi- nation. But the Court has never told us, even forty years later, how the factors are to be considered and weighed. That is the purpose of this Article. The Article first proceeds to identify the balancing factors, be- cause the Penn Central Court explicitly described only some of them, while leaving others poorly defined. The Article describes the factors as the economic impact of the regulation, the degree to which it physi- cally invades the property, whether it serves a broad public purpose, the comprehensiveness of the regulation, the likelihood of creating re- ciprocal advantage, whether it appropriates property for a govern- ment function, and whether it prevents noxious activities. Then, the Article considers the policies underlying the Fifth Amendment. These could be said to include preventing the unfair sacrifice of the few to the benefit of the many, restraining the exuberance of regula- tors, harmonizing competing uses of property, and encouraging in- vestment. The final step is to consider how the factors can best serve these purposes. The Article concludes that one factor, broad public purpose, is so likely to be misleading that its use should be narrowly confined. Several other factors will probably be helpful only in unu- sual cases. In the end, economic impact and comprehensiveness emerge as the factors most likely to be usefully to identify takings in the broad range of case. D avid Crum p ............................................. INFANCY DOCTRINE INQUIRIES Changing technologies have drastically altered the ways that mi- nors contract. The Internet has brought the marketplace into the modern teenager's backpack. In addition, clickwrap and browsewrap agreements purport to bind minors to contracts that they never read and, even if they were to read, could not hope to decipher. This new technological setting brings the challenges and opportunities of the infancy doctrine to the forefront. The doctrine stands on the general concept that contracts entered into before the age of majority are voidable by the minor. Recent trends in contract law that have loos- ened the standards for assent and dulled the blade of unconscionabil- ity show that the time is right for the infancy doctrine to regain some of its prominence as it provides this missing protection to minors who enter into ill-advised contracts.

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