Academic journal article William and Mary Law Review

An Empirical Study of Implicit Takings

Academic journal article William and Mary Law Review

An Empirical Study of Implicit Takings

Article excerpt

ABSTRACT

Takings scholarship has long focused on the niceties of Supreme Court doctrine, while ignoring the operation of takings law "on the ground"--in the state and lower federal courts, which together decide the vast bulk of all takings cases. This study, based primarily on an empirical analysis of more than 2000 reported decisions over the period 1979 through 2012, attempts to fill that void.

This study establishes that the Supreme Court's categorical rules govern almost no state takings cases, and that takings claims based on government regulation almost invariably fail. By contrast, when takings claims arise out of government action other than regulation, landowners enjoy modest success. In particular, when government actions are taken by officials who are not politically accountable, state courts are more likely to scrutinize those actions.

This pattern is consistent with what we believe to be the courts' basic project in this area: to develop doctrine that acknowledges the importance of property rights while also accommodating the needs of an activist state. By and large, political processes, not judicial doctrine, are left to serve as the primary check on government activity.

TABLE OF CONTENTS

INTRODUCTION

I.   SUPREME COURT DOCTRINE
     A. Categorical Rules
     B. Ad Hoc Balancing
     C. Wrinkles in the Doctrine
        1. The Denominator Problem and Conceptual Severance
        2. Counting Benefits that Ameliorate Regulatory Impact
        3. The Effect of Purchase with Knowledge of Government
           Imposition
     D. Exactions
     E. Remedies
     F. Ripeness and Preclusion
II.  STATE IMPLEMENTATION OF SUPREME COURT DOCTRINE
     A. Methodology
     B. Categorization
     C. Findings
        1. Per Se Rules
           a. Permanent Versus Temporary Physical Intrusion
           b. Wipeouts
        2. Regulatory Takings Claims that Fall Outside the
           Categorical Rules
           a. The Overall Picture
           b. Disparities Among Regulatory Takings Claims
        3. Exactions
        4. Government as Enterpriser
        5. Condemnation Blight
        6. Identity of the Claimant
        7. The Federal Courts (the Supreme Court Aside)
     D. State Legislation
III. A THEORETICAL PERSPECTIVE
     A. The Historical Tension Between Private Property and
        State Power
     B. The Impact of the Tension on Takings Jurisprudence
        1. The Limited Force of Per Se Rules
           a. Permanent Physical Occupations
           b. Wipeouts
        2. The Futility of Term Central Claims
        3. The Limited Impact of Other Property-Friendly Rules
        4. The Role of the States

INTRODUCTION

When the government sues to condemn private property under its power of eminent domain, taking the property is the admitted purpose of the suit. But as sketched in Part I below, a long line of Supreme Court decisions establishes that takings can also arise from other governmental activities that trigger the protections afforded by the Constitution's Takings Clause, (1) notwithstanding the government's insistence that no taking has occurred. The resulting body of doctrine sets a "constitutional bottom." (2) States must protect property at least as much as the Court's rules decree, but they are free in principle to protect it more. However, state courts are also able, at least in practice, to protect it less, because the Supreme Court has developed ripeness and preclusion rules that limit the ability of lower federal courts to oversee the work of state courts, (3) and because the Court can review only a fraction of takings cases in any event.

An obvious implication of these observations is that the law of takings announced by the Court might significantly differ from the law of takings actually implemented by the states. Yet state implementation has been virtually ignored in the literature, in favor of a preoccupation with Supreme Court doctrine. …

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