Below is the abstract for “Taking Back the Takings Clause: Tyler v. Hennepin County and State Power over Property,” available for download on SSRN.

The Taking Clause requires “just compensation” for the “taking” of any “private property.” But the Constitution does not define what counts as a property interest. For decades, the prevailing understanding has been that state law provides that definition. In Tyler v. Hennepin County the Supreme Court held last Term that state law cannot be the only source of property rights for the purposes of the Takings Clause. That decision swept aside states’ sovereign prerogatives to define the metes and bounds of their property-rights regimes, embracing instead what some have termed a “general law” of property. According to the Tyler Court, the property interests protected by the Takings Clause are those recognized by traditional property law principles, historical practice, and the Court’s own precedents.

The use of the Takings Clause against Minnesota’s tax-forfeiture scheme implicated important and unsettled questions regarding the scope of the Takings Clause and its relationship to longstanding state laws delimiting property rights. The first was how to define what counts as a “taking.” Many other governmental powers transfer property interests—taxes and forfeitures are just two of them—yet they are not subjected to the constitutional requirement of just compensation. What limits are there on states’ abilities to categorize their own actions? This Article terms this the “categorization trap.” The second question implicated by Tyler was the relationship between the Takings Clause and the traditional power of states to define property interests. Because states in possession of this power may use it to define away property interests and sidestep the Takings Clause, some scholars have noticed the potential for a “positivist trap”: by empowering states to define property through their enacted laws (positivism), the Constitution might permit them to defang its own protections (the trap).

Faced with these thorny traps, the Tyler Court all but ignored the first and provided an unsatisfactory answer to the second. As this Article shall argue, at least two other paths were available. The first solution—the “state purpose” approach—would permit the invalidation of state action that has the purpose of evading the Takings Clause’s demands by either categorizing a taking as not a taking or by “defining away” private property rights. This solution draws on the strategy federal courts have adopted when evaluating the adequacy of a state-law grounds for judgment, a context that the Court itself has already recognized as raising similar issues. The second solution—the “staleness” approach—would place a time limit on takings claims. Under this approach, the passage of time might translate laws or regulations into background principles of a state’s law of property, on which reasonable, investment-backed expectations might rely. Both approaches respect the traditional powers of states to define property rights while placing limits on their abilities to sidestep the Takings Clause. They are thus an improvement on the course the Court has currently embarked on. This Article will make the case that at least one of these common solutions should have been adopted, and that in future cases the Court should seriously consider amending its current approach to incorporate insights from one or both approaches.


Russell C. Bogue

Office of the Solicitor General for the District of Columbia

Russell C. Bogue is a Liman Fellow in Office of the Solicitor General for the District of Columbia in Washington, D.C., working on litigation related to gun regulation and the meaning of the Second Amendment.