Murr v. Wisconsin and the Future of Takings Law

Abstract

Murr v. Wisconsin was a major defeat for property-rights advocates and a big win for land use regulators and environmentalists. The main issue was seemingly very technical, relating to what’s called the “denominator problem” in takings law. The majority ruled against the owners not only on this issue but on several other open questions in takings law. Although the dissenters favored the owners on the denominator issue, they seemed otherwise content with the majority’s analysis. All the Justices enthusiastically embraced the Penn Central balancing test for regulatory takings – a test that nearly always favors regulators.

This triumph of Penn Central is an understandable product of the Court’s dilemma in this area of law. It is willing to adopt neither of the two most principled alternatives: reviving Lochner-era restrictions on government regulation or else giving regulators a blank check. A vigorous attack on regulation would itself upset the settled expectations of property owners. In the face of this dilemma, the best available option seems to be an ad hoc analysis upholding the principle of constitutional protection for property but providing only sporadic protection in practice.

Keywords: Property Rights, Regulatory Takings, Constitutional Law, Property Law, Takings Clause