The Domino Effect in State Takings Law: A Response to 51 Imperfect Solutions

Abstract

In 51 Imperfect Solutions, Judge Jeffrey Sutton depicts some of the virtues and flaws of our dual system of American constitutionalism across four chapters illustrating different models of interaction among the state and federal constitutions and their interpreters. In this symposium contribution, I submit a fifth chapter about property law that varies in some important respects from Judge Sutton's chapters involving education rights, the Fourth Amendment's exclusionary rule, forced sterilization, and the First Amendment.

Several of Judge Sutton's chapters are told through parallel federal and state stories. Borrowing this approach, this contribution tells a federal story—from an odd period during the nineteenth century when the federal courts routinely expounded and disseminated state takings law—and a state story—from a fifty-year period in the twentieth century when the states were left to decide whether to follow the federal courts in recognizing regulatory takings but without a specific test to follow. Across these stories, takings law has often been marked by uniformity, rather than state-level variation and innovation—uniformity driven, in part, by the force of other states' rules. This domino effect is the consequence of both specific features of takings doctrine and organic borrowing. In closing, I offer some tentative thoughts on why property and takings law have tended to yield homogeneity and eliminate ingenuity in this way, even in the absence of definitive federal pronouncements about some of the thorniest puzzles within takings doctrine.