Takings Federalization

Abstract

Federal constitutional law exerts an outsized role and influence over state constitutional law. In takings, Supreme Court jurisprudence has dominated state court interpretations of analogous state constitutional takings provisions. This does not mean, however, that the Supreme Court always leads and the state courts always follow. At times, the opposite is true. There is, indeed, an underappreciated and under addressed role reversal in which the Supreme Court follows the lead of state courts. State takings doctrines have, on limited occasions, influenced federal takings jurisprudence. This federalization of takings is a distinct feature of judicial dual sovereignty where the Supreme Court consults, borrows, and adopts state court doctrine as a primary source to interpret the Takings Clause and establish or clarify existing federal takings jurisprudence.

This Article illuminates how federal takings jurisprudence is developed through the state courts by highlighting a few prominent, and a couple obscure, takings rulings where the Supreme Court formulated its exactions jurisprudence and analyzed intricate just compensation and damages questions by borrowing well-established state constitutional takings doctrines. This Article identifies these often unrecognized examples of takings federalization and suggests that the practice of the Supreme Court looking to state courts and state constitutional law for guidance should be afforded greater attention and recognition in the scholarly literature.

Keywords: constitutional law, takings, judicial federalism, state constitutional law, state courts, federalization

JEL Classification: K11, R52