This Article examines the diversion of the Takings Clause from its historic limited role to that of a charter for courts to second-guess legislative determinations of land-use rights and wrongs. As we shall see, prior to Lucas the Supreme Court and others following its lead have generally not regarded the Takings Clause as a warrant for reaching de novo determinations on land use problems and then substituting such judicial determinations, if different, for those of the legislature. Some notable exceptions in the Claims Court and Federal Circuit will then be considered along with the ostensible Supreme Court authority, a sentence in Agins v. City of Tiburon. The future importance of such activist review will be considered in light of the main barrier still standing against it, the no-segmentation rule, which requires that the impact of land use regulations be viewed in relation to the owner's property “as a whole.” Finally, against this background the Article will address the question of the courts' proper role in supervising legislative judgments in the land use field.
John A. Humbach, "Taking" the Imperial Judiciary Seriously: Segmenting Property Interests and Judicial Revision of Legislative Judgments, 42 Cath. U. L. Rev. 771 (1993), http://digitalcommons.pace.edu/lawfaculty/107/.