Murr v. Wisconsin and the Supreme Court's Regulatory Takings Jurisprudence

Abstract

This paper reviews the last thirty years of the Supreme Court’s regulatory takings jurisprudence and the implications for it of the Court’s latest decision in Murr v. Wisconsin. Building on revelations from the author’s previous analysis of the papers of the late Justices Marshall and Blackmun, it concludes that the Court is more sharply divided in regulatory takings cases than it was in 1986 when Justice Scalia joined the Court and Justice Rehnquist became Chief Justice. The paper explores tensions between the Court’s regulatory takings jurisprudence and its efforts to revive constitutional limits on federal power. Noting that Justice Kennedy has been in the majority in all ten regulatory takings cases decided while he has been on the Court, the paper concludes that after he retires his successor could have a profound effect on the future of regulatory takings jurisprudence.

Keywords: regulatory takings, swing vote, swing justice, Lucas, Dolan, Palazzolo, Tahoe-Sierra, Lingle, property law, Supreme Court, zoning, land use, Kelo