The Federalist Dimension of Regulatory Takings Jurisprudence

70 Pages Posted: 8 Jun 2005  

Stewart E. Sterk

Yeshiva University - Cardozo Law School

Abstract

Conventional wisdom teaches that the Supreme Court's takings doctrine is a muddle. Appearances, however, are deceiving. The "property" protected by the Takings Clause is defined not by a single sovereign, but by the legislative enactments and judicial pronouncements of fifty separate states. As a result, federalism concerns - underappreciated in the takings literature - do and should play an important role in shaping the Court's takings doctrine. In particular, these concerns make it inappropriate for the Court to use the Takings Clause as a vehicle for articulating a comprehensive theory of the limits on government power to regulate land. This Article focuses on the ways in which federalism concerns (together with related institutional concerns) shape takings jurisprudence.

Keywords: land use planning, takings clause, eminent domain, just compensation, zoning

Suggested Citation

Sterk, Stewart E., The Federalist Dimension of Regulatory Takings Jurisprudence. Yale Law Journal, Vol. 114, p. 203, 2004. Available at SSRN: https://ssrn.com/abstract=739235

Stewart E. Sterk (Contact Author)

Yeshiva University - Cardozo Law School ( email )

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