Lynda L. Butler


In a 2015 decision, the Supreme Court concluded that real and personal property should not be treated differently under the Takings Clause and that a government condition requiring raisin growers, in certain years, to reserve a percentage of their crop for the government to manage in noncompetitive venues was a per se physical taking. The decision to treat both real and personal property as equally worthy of protection under the Takings Clause has merit given the weak historical evidence suggesting stronger protection for land and the importance of personal property to income generation and capital development in a modern society. What does not make sense is the Court’s continued expansion of its per se physical takings concept to govern many types of property and regulatory settings. Both real and personal property come in many sizes, shapes, and colors. Takings analysis should not ignore differences in the types of property, nor in the complexities of the various property settings.

Under a per se approach, those differences do not matter. Under a per se approach, the Court’s physical takings analysis is simplistic and one-dimensional: did the government physically appropriate, seize, or invade private property without payment of just compensation? Generally left out of the equation is any consideration of the public interest or third-party concerns, regardless of their importance or their role in shaping the property interest. Nor does a physical appropriation actually have to occur. The per se physical taking may instead be more conceptual than actual or may involve one right in a bundle of rights, still leaving the property owner with other rights. In its drive for clarity and simplicity, the Court thus has posed a serious dilemma for takings jurisprudence: the difficult task of solidifying constitutional protection for all types of property with an all-encompassing, absolute rule that can provide sufficient predictive value for the complex contexts of modern-day property. What the Court’s approach overlooks is property’s ability to evolve and provide order for emerging resources and new forms of property. What the Court’s approach overlooks is the need to develop constitutional principles that reflect property’s richness and frontiers.

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