Public Use, Substantive Due Process, and Takings—An Integration

In differing ways, the three related doctrines of public use, substantive due process, and takings all provide landowners a measure of protection from various unlawful impingements by government upon their rights to own, possess, use, or transfer realty. This article first recapitulates the often uncertain content of the three doctrines and in the process discusses the purposes and policies of each. It then argues the courts should keep in mind those different purposes and policies in devising the appropriate remedies for enforcing each of the rules in order to avoid handling functionally equivalent land use problems in ways that are irrationally inconsistent with each other. Finally, with the help of a hypothetical, the article attempts to outline an approach that integrates the purposes and policies of the rules with the appropriate means of enforcing them.