Dueling Denominators and the Demise of Lucas

24 Pages Posted: 22 Aug 2017 Last revised: 29 Jun 2018

See all articles by Stewart E. Sterk

Stewart E. Sterk

Yeshiva University - Benjamin N. Cardozo School of Law

Date Written: August 22, 2017

Abstract

In Murr v. Wisconsin, the Supreme Court outlined a process for ascertaining the denominator in takings cases – an issue that arises both with respect to Penn Central takings claims and Lucas takings claims. The underpinnings of Penn Central claims and Lucas claims are not identical; Penn Central’s primary concern is assuring fairness to landowners, while the focus of Lucas is on restricting government efforts to bypass the condemnation process. Although this difference in focus might suggest a difference in appropriate denominator, the Court’s multi-factor balancing approach apparently applies to all takings claims. Although the Court’s approach is consistent with Penn Central objectives, it is less consistent with Lucas objectives, and reduces the likelihood that Lucas claims will be successful.

At the same time, the Court’s opinion, if taken literally, appears to break both with basic federalism principles and with the Court’s own doctrine by rejecting state law as the source for the takings denominator. Closer analysis reveals, however, that the factors outlined by the Court remain closely tied to state law, resulting in less of a break with principle and precedent than suggested by Chief Justice Roberts’ dissent.

Keywords: takings, property, takings denominator, Murr

Suggested Citation

Sterk, Stewart E., Dueling Denominators and the Demise of Lucas (August 22, 2017). Cardozo Legal Studies Research Paper No. 523, Arizona Law Review, Vol. 60, No. 1, 2018, Available at SSRN: https://ssrn.com/abstract=3024093 or http://dx.doi.org/10.2139/ssrn.3024093

Stewart E. Sterk (Contact Author)

Yeshiva University - Benjamin N. Cardozo School of Law ( email )

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