Physical and Regulatory Takings: One Distinction Too Many

Richard A. Epstein

At this moment, it looks as though the law of eminent domain takings is in a quiet phase, as the Supreme Court has not recently taken any major case that examines the foundations of the field. One apparently settled area of takings jurisprudence deals with rent control, where the Court provides only scant protection to landlords who claim that their property has been taken when states and local governments pass local laws that restrict their right to evict tenants at the expiration of their leases. For example, a recent challenge to New York’s rent control law received a polite dust-off in the Second Circuit in Harmon v. Kimmel. The head of New York City’s Rent Guidelines Board declined to answer Harmon’s petition for certiorari in the United States Supreme Court. Much to everyone’s surprise, the Supreme Court requested an answer from the New York City defendants, which is now scheduled to be filed by March 5, 2012. Perhaps this surprising development is attributable in part to the extensive and sympathetic coverage that Harmon’s plight has received in the press.

Whether the Supreme Court grants certiorari or not, this case highlights the simple proposition that most important doctrinal decisions are made with reference to cases that have simple and recurrent fact patterns that raise major questions of principle. There are two key subtexts of the rent control cases. First, how do the Supreme Court’s takings decisions deal with divided interests in land? Second, how does the Court deal with the now-unquestioned distinction between physical and regulatory takings? This brief article addresses both of these ever-timely issues.