The Realities of Takings Litigation

Abstract

This Article presents an empirical study of takings litigation against the United States. It reviews the cohort of takings cases filed against the federal government between 2000 and 2014, tracing each case from filing through final disposition. The result is a picture of takings litigation that is at odds with much of the conventional wisdom of the field.

That conventional wisdom suggests that most takings cases will involve alleged regulatory takings; that the most intellectually challenging issues will arise within the field of regulatory takings; and, more broadly, that takings litigation will play an important role in the United States’ efforts to balance government regulation against individual liberty. This article instead reveals that most takings litigation against the federal government involves alleged physical takings; that key recurring questions involve the selection of a method of takings analysis and the nature of property rights rather than the nuances of regulatory takings standards; and that takings litigation is only peripherally relevant to relationships between federal regulators and most regulated entities. These findings apply only to takings litigation against the federal government, however; takings litigation against state and local governments was not part of this study.

Even with that significant caveat, these findings demonstrate the need to recalibrate the focus of takings theory and doctrine. At a general level, they call for heightened attention to alleged physical takings. More specifically, they call for more careful policing of the boundaries between methods of takings analysis, for more focus on the types of property rights that should receive takings protection, and for reexamination of the premise that almost all physical takings claims should be subject to categorical analyses.

Keywords: takings, eminent domain, regulatory takings, physical takings, Court of Federal Claims, Federal Circuit

JEL Classification: K11, K32, Q58