Professor Shelley Saxer Quoted in "Drug Price Program Legal Fight Shifts Focus to Property Rights" -- Bloomberg Law

Professor Shelley Ross Saxer is quoted in the Bloomberg Law article, "Drug Price Program Legal Fight Shifts Focus to Property Rights." The article examines the Supreme Court ruling on landowner property fees in Sheetz v. County of El Dorado, which is being cited by pharmaceutical companies arguing the price-setting scheme in the Medicare Drug Price Negotiation Program violates the Fifth Amendment takings clause. Sheetz addressed the question on if the Nollan/Dolan test—a framework on whether permit conditions have a “nexus” and “rough proportionality” to the government’s land-use interest—recognizes a distinction between legislative and administrative conditions on land-use permits.

Excerpt from "Drug Price Program Legal Fight Shifts Focus to Property Rights"

While this isn’t the first time manufacturers have brought up Nollan/Dolan scrutiny, their recent filings are a “very strained application to go from land-use to a government contract negotiation,” said Shelley Ross Saxer, a professor at Pepperdine University Caruso School of Law.

Saxer, who specializes in property and land-use law, said pharmaceutical companies can argue the program is a taking, but the Nollan/Dolan framework isn’t the right test to determine that.

“I understand the government is saying we’re going to pay you so much less than your business model, but if you want to challenge that legislation as going too far—restricting too much—Penn Central is your test,” she said.

The test, born out of Penn Central Transportation Co. v. New York City (1978), requires courts to balance three factors to determine if a regulatory taking occurred: economic impact of the regulation on the claimant; the extent to which the regulation interferes with distinct investment-backed expectations; and the character of the government action.

“The difference is what test you apply to the taking,” Saxer said. “Every property owner wants to allege a per se taking—such as under Nollan/Dolan scrutiny—but I don’t believe it is the appropriate test in this situation.

The complete article may be found at Bloomberg Law