Reconceptualizing Property Law's Background Principles in Takings Law

69 Pages Posted: 17 Jul 2024

Date Written: July 01, 2024

Abstract

Both libertarians and progressives celebrated the result in Tyler v. Hennepin County. This Article asserts that this unified celebration has overshadowed the extent to which the Supreme Court’s reasoning calls into question even our most foundational assumptions about the meaning of property and the takings protections the constitution affords to it. Followed to its literal end, Tyler remarkably suggests that owners may well need to ground their expectations in the property laws endorsed by a majority of states rather than in the laws of their own state.

Suspicious that the Court intended such a revolutionary upheaval of the state variations that have characterized our federalist system for more than two centuries, the Article contends that Tyler is better interpreted as an epic failure in judicial transparency: The opinion reflects a sly reticence to acknowledge the reality that resolving competing claims to property demands moral judgment regarding the background principles of property law. In following this deceptive course, Tyler invites a race to legislative homogeneity and erects a dangerous barrier to states’ abilities to innovate in the face of evolving social, economic, and environmental conditions

Keywords: takings protections, property law, fifth amendment

Suggested Citation

Mulvaney, Timothy M., Reconceptualizing Property Law's Background Principles in Takings Law (July 01, 2024). Minnesota Law Review, Forthcoming, Texas A&M University School of Law Legal Studies Research Paper No. 24-81, Available at SSRN: https://ssrn.com/abstract=4896447 or http://dx.doi.org/10.2139/ssrn.4896447

Timothy M. Mulvaney (Contact Author)

Texas A&M University School of Law ( email )

1515 Commerce St.
Fort Worth, TX Tarrant County 76102
United States

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