Federalism, Convergence, and Divergence in Constitutional Property

89 Pages Posted: 30 Oct 2018

See all articles by Gerald S. Dickinson

Gerald S. Dickinson

University of Pittsburgh - School of Law

Date Written: October 29, 2018


Federal law exerts a gravitational force on state actors, resulting in widespread conformity to federal law and doctrine at the state level. This has been well recognized in the literature, but scholars have paid little attention to this phenomenon in the context of constitutional property. Traditionally, state takings jurisprudence—in both eminent domain and regulatory takings—has strongly gravitated towards the Supreme Court’s takings doctrine. This long history of federal-state convergence, however, was disrupted by the Court’s controversial public use decision in Kelo v. City of New London. In the wake of Kelo, states resisted the Court’s validation of the economic development justification for public use, instead choosing to impose expansive private property protections beyond the federal minima. This resistance thus raises a fundamental puzzle: despite the fracturing of public use doctrine following Kelo, states continue to converge around the force of and be lured by the Court’s regulatory takings jurisprudence. Why is this? This Article argues that the most persuasive explanation is the political economy; that is, where homeowners are perceived to be underprotected by Supreme Court decisions, state actors are more likely to diverge from federal doctrine to grant greater protections as opposed to when the challenger is a developer-landowner. The Court has not underprotected a homeowner in a regulatory takings challenge in a manner that would spark a similar post-Kelo state resistance. Few scholars have explored this mystery and offered conceptual and doctrinal explanations on the value of state divergence from federal takings doctrine in our federalist regime.

Keywords: Federalism, constitutional property, Takings, Kelo, constitutional law, Fifth Amendment, regulatory takings

JEL Classification: K11, K19, R38, R52

Suggested Citation

Dickinson, Gerald S., Federalism, Convergence, and Divergence in Constitutional Property (October 29, 2018). University of Miami Law Review, Vol. 73, p. 139, 2018, U. of Pittsburgh Legal Studies Research Paper No. 2018-33, Available at SSRN: https://ssrn.com/abstract=3274665

Gerald S. Dickinson (Contact Author)

University of Pittsburgh - School of Law ( email )

3900 Forbes Ave.
Pittsburgh, PA 15260
United States
412 328 3198 (Phone)

HOME PAGE: http://law.pitt.edu/people/gerald-s-dickinson

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