Three-Prong Penn Central Test

Question 4/19/06

            In reading Palazzolo for tomorrow, I noticed that the court cited a different version of the Penn Central three-prong test from what we discussed in class Tuesday. The court split the economic impact question into two prongs and wrapped the character/nature of government action into one, putting the test this way:  

1.) economic impact on property
2.) interference with investment-backed expectations
3.) character of government action

I found other cases (online) citing the Penn Central three-prong test that also broke it down this way, but I didn't find anybody explaining what the third prong now means. The best explanation I could find was basically, Is there an invasion (probably a taking), or is there merely some impact from a government program that provides a public good (probably not a taking)? There doesn't seem to be anything left of the:  Is this an inherently governmental in nature activity (and therefore probably is a taking)? question. Am I reading this wrong?  I'm getting quite confused about what the three-prong test is now and how to apply it.

Karjala Response 4/20/06

            This is a very good question. I have pointed out in some private conversations with students this apparent shift in the Penn Central "test" to divide the first factor into two and drop the Penn Central reference to whether the regulation facilitates a "uniquely public function." We have already seen that applying the Penn Central 3-prong "test" does not lead to obviously correct answers to new situations. The lesson from this, especially for those beginning law studies, is that while these judicial "tests" can be important and must be paid homage in the analysis (for either side), they are often not the end of the analysis. We must be on the lookout for other factors that may be moving the courts to decide cases one way or another. What we see creeping into the opinions, including for example Justice Stevens's dissent in Lucas and perhaps most importantly the Supreme Court's recent unanimous decision in Lingle v. Chevron, is the notion of "singling out": Has the claimant's property been singled out to bear the brunt of a burden that, in fairness, should be borne by the community? (That notion, if it continues to develop and gets a firmer foothold, may ultimately lead to the conclusion that Penn Central itself was wrongly decided.)  For us, and for all practicing lawyers, the question is not, cannot be, and never has been, "What test gives the correct answer?" in the sense of telling us what a court will decide.  For us the question is, "What factors have the courts identified in their 'tests,' and what factors can we identify that are only implicit in the decisions, that we can use in arguments that apply the facts of our case and lead to the result sought by those we represent?"