Property Rights and Takings Burdens

Property Rights Conference Journal (2018 Forthcoming)

George Mason Legal Studies Research Paper No. LS 17-19

67 Pages Posted: 16 Nov 2017

See all articles by Steven Eagle

Steven Eagle

George Mason University - Antonin Scalia Law School, Faculty

Date Written: November 14, 2017


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.

Keywords: Murr, regulatory takings, Penn Central, relevant parcel, parcel as a whole

JEL Classification: K11, H7, K25

Suggested Citation

Eagle, Steven, Property Rights and Takings Burdens (November 14, 2017). Property Rights Conference Journal (2018 Forthcoming), George Mason Legal Studies Research Paper No. LS 17-19, Available at SSRN:

Steven Eagle (Contact Author)

George Mason University - Antonin Scalia Law School, Faculty

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