Takings Jurisprudence in the U.S. Supreme Court: The Past 10 Years

No area of American property law has been more controversial in recent years than the government regulation of uses of private property. No aspect of American constitutional law more sharply poses the dilemma about the legitimate powers of the regulatory state than the requirement that the government pay compensation for takings of property. The purpose of this essay is to acquaint the non-American legal scholar who is unfamiliar with the recent developments in the United States Supreme Court “takings” jurisprudence. The essay does not presuppose any background knowledge about either American constitutional or property law. Instead it attempts to familiarize those who are interested in comparative constitutional law with the major changes in this increasingly important area of American public law. Several American commentators, particularly in the media, have argued that the past decade has witnessed a “revolution” in American takings law. This essay will argue that while significant changes have occurred in takings doctrine, it is vastly premature to conclude that these changes amount to anything like a doctrinal revolution. Too much of the preexisting doctrinal structure remains intact, and too many important questions remain unresolved to warrant such a conclusion. A more balanced characterization of the current state of takings jurisprudence in the U.S. Supreme Court is that it is unsettled and increasingly contentious