Property Rights and Takings Burdens


The Fifth Amendment Takings Clause was interpreted through the 19th century as referring only to physical takings or ousters of possession. Justice Holmes enigmatic 1922 opinion in Pennsylvania Coal Co. v. Mahon was the genesis of contemporary “regulatory takings” doctrine, which reached full expression in 1978, in Penn Central Transportation Co. v. City of New York. The ad hoc, three-factor test of Penn Central, generally deemed incoherent and chaotic, focused on regulatory burdens placed upon landowners, with respect not to specific rights, but rather with regard to a specified relevant parcel (“parcel as a whole).” In 2017, in Murr v. Wisconsin, the Court conflated the elements of what constitutes the relevant parcel and the three factors pertaining to whether that parcel had been taken.

The Article discusses theories of “property,” the merits of balancing tests versus more objective rules, and how these play out in the Murr majority opinion and dissents. It also treats the importance of Murr’s mandate to internalize those externalities that were irrelevant prior to regulation. Given the universal unhappiness with regulatory takings jurisprudence, the Article also considers arguments for reconsidering regulatory takings as due process deprivations.