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Property Rights "Takings": Justice O'Connor's Opinions

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Abstract:

When Justice O'Connor ascended to the Supreme Court, expectations were that she would adhere to the conservative line and generally uphold the property rights position over the government's in Fifth Amendment "takings" cases. This did not happen. Instead, in this area as well as others, she established her place at the Court's ideological center. To be sure, Justice O'Connor made many arguments favoring property owners, in both her opinions and her concurrences and dissents. But this asserted empathy for the property owner did not translate into espousal of bold doctrinal shifts in takings law. Rather she preferred an ad hoc case-by-case approach, as embodied in the Penn Central test for regulatory takings, whose current dominance she helped to establish. The remainder of the report reviews her takings-related writings for the Court.