Murr v. Wisconsin and the Inherent Limits of Regulatory Takings
William & Mary Law School Research Paper No. 09-414
45 Pages Posted: 21 May 2020 Last revised: 26 Feb 2021
Date Written: May 8, 2020
Almost one hundred years after announcing that regulations could go too far by confiscating economically viable use, the Supreme Court still faces significant questions about the regulatory takings doctrine. Long before the development of the doctrine, courts mixed narratives of substantive due process and physical takings to evaluate claims of confiscatory regulatory practices. The Court’s 2017 decision in Murr v. Wisconsin adds to the confusion, sending mixed messages and heightening interest in the scope of the doctrine. While powerful reasons support treating as compensable economic regulations that are functionally equivalent to a physical taking, important differences between physical and regulatory takings should be treated as limitations to the degree of equivalence possible and therefore to the scope of the doctrine. The inherent limitations of the regulatory takings doctrine need to be recognized if the doctrine is to remain a viable concept for protecting property rights under the Takings Clause.
Keywords: property rights, regulatory takings, land use, substantive due process, property theory
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