Taking the Courts: A Brief History of Takings Jurisprudence and the Relationship between State, Federal, and the United States Supreme Courts

Authors

Rachel A. Rubin

Abstract

Regulatory takings law today is criticized as a confused muddle, intractable, and as an ambiguous area in which the United States Supreme Court complicates its own jurisprudence with each new decision. Though this is rather true, it is because the often factspecific nature of takings cases leads to results that are "pragmatic at the expense of internal consistency." This note traces the role of the federal courts and the United States Supreme Court with regard to review of state judicial changes in takings or property law. It examines the position of the federal courts in their review of both physical and regulatory takings cases. Part I addresses the political and social history behind the development of takings jurisprudence, and offers some contextual reasons for the murky law. Part H explains the four primary ways in which a plaintiff can mount a takings challenge, and the related role of the courts with regard to each theory. Part III looks toward future takings challenges and the implications of the U.S. Supreme Court's current trend toward rule-formalist analysis. Rather than conclude that the takings doctrine is "a hopeless mess," the paper finds that there is a light at the end of the dark tunnel., are meant to use the Tenth Amendment as a constitutional check on federal power.

Recommended Citation

Rachel A. Rubin, Taking the Courts: A Brief History of Takings Jurisprudence and the Relationship between State, Federal, and the United States Supreme Courts, 35 Hastings Const. L.Q. 897 (2008).
Available at: https://repository.uclawsf.edu/hastings_constitutional_law_quaterly/vol35/iss4/8