About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

50 Vand. L. Rev. 1447 (1997)
Role of the Harm/Benefit and Average Reciprocity of Advantage Rules in a Comprehensive Takings Analysis, The

handle is hein.journals/vanlr50 and id is 1489 raw text is: The Role of the Harm/Benefit and Average Reciprocity of Advantage Rules in a Comprehensive Takings Analysis Lynda J. Oswald 50 Vand. L. Rev. 1449 (1997) In this Article Professor Oswald contends that judicial and scholarly analysis in recent years has focused on the per se and ad hoc tests for regula- tory takings. Little attention has been given to two tools that the Supreme Court historically used in distinguishing a noncompensable regulation from a compensable taking: the harm/benefit test and the average reciprocity of advantage rule. In simple terms, the harm/benefit test states that a regulation intended to prevent a public harm is a valid exercise of the police power, while a regulation intended to confer a public benefit is potentially a regulatory taking. The average reciprocity of advantage rule maintains that there is a subset of benefit-conferring regulations that do not rise to the level of a compensatory taking: those that provide reciprocal benefits to the regulated parties. In this Article, Professor Oswald explores the historical evolution and development of these two rules, and their roles as building blocks of a compre- hensive takings theory. Professor Oswald concludes that while the two rules, as originally articulated, provided valuable paradigms for distinguishing be- tween valid and invalid exercises of the police power, the rules have since been corrupted to the point where they have become unusable. Revival of the his- torical articulations of these two rules would enable courts to draw a clearer distinction between regulatory takings and valid police power actions, and would thus provide a critical first step toward resolving the current takings dilemma.

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Purchase Access

Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most