“Oh Lord, Please Don't Let Me Be Misunderstood!”: Rediscovering the Penn Central and Mathews v. Eldridge Frameworks


The manuscript re-examines the origins and purposes of two of the most misunderstood constructs in modern legal doctrine: the so-called Penn-Central and Mathews v. Eldridge three-factor tests. We say “so-called,” because neither case actually invented a three-factor test. Penn Central set forth a framework involving two factors that later cases (unwisely, in our view) expanded to three, and the framework in Mathews was initially crafted by litigators in the Solicitor General’s office in order to resolve the specific issue facing the Court in that case. More significantly, neither Penn Central nor Mathews purported to set forth a methodology for deciding or predicting case outcomes. Instead, both decisions sought merely to provide a vehicle in which lawyers and judges could write and speak intelligibly about the ultimate object of inquiry in procedural due process and regulatory takings case: fundamental fairness. Once Penn Central and Mathews are properly understood, they appear as much more useful and sensible doctrinal constructs than modern law and commentary generally acknowledge. It also becomes possible to reconstruct them in a fashion that better serves their true jurisprudential aims.


Administrative Law | Constitutional Law | Natural Resources Law

Date of this Version

April 2005