미국 연방대법원 Lingle v. Chevron 판결의 의미 ― 규제적 수용 인정 범위의 축소 ―

This article analyses Lingle decision(Linda Lingle, Governer of Hawaii v. Chevron U.S.A. Inc., 544 U. S. 528, 125 S. Ct. 2074(2005), which held that the formula inquiring whether government regulation of private property “substantially advances” legitimate state interests prescribes inquiry in nature of due process, and is not appropriate test for determining whether regulation effects Fifth Amendment taking, abrogating the holding of Agins v. City of Tiburon, 447 U.S. 255, 260, 100 S.Ct. 2138, 65 L.Ed.2d 106. In Agins v. City of Tiburon, a case involving a facial takings challenge to certain municipal zoning ordinances, the Court declared that “the application of a general zoning law to particular property effects a taking if the ordinance does not "substantially advance" legitimate state interests, or denies an owner economically viable use of his land. This is called two prongs of Agins. Lingle decision's meaning is to abrogate first prong of Agins for the regulatory taking test. There has been great battles between scholars about the relation between takings review and substantive due process review and the role of the “substantially advances” test. Some have argued it is means-end test appropriate for the substantive due process review. This means some parts of protection for the property which have been reviewed by the takings test should be resolved by the arbitrary test of the due process review. They say although the latter is minimum standard, both are based on the different logics. "Takings clause's role is barring Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.” " It is designed not to limit the arbitrary governmental interference with property rights, but rather to secure compensation in the event of otherwise proper interference amounting to a taking.” "“Substantially advances test is appropriate for the arbitrary governmental interference. Lingle's court has adopted this view. Concludingly I have thought what does this change means in compensatory law. It is the change of the degree of protection for the property rights. It is the reduction of law by the judges who have created regulatory taking by the interpretation of the constitution, and that of the extent of the regulatory taking.