Novel Takings Theories: Testing the Boundaries of Property Rights Claims
In the past seventy-five years, property rights litigation has transformed from a constitutional afterthought to a major force in the defense of a fundamental right. It did not happen overnight, and it did not happen without some very heavy lifting, fortuitous circumstances, and an intellectual revival in the Academy. For the first third of the past seventy-five years, arguments suggesting limits on government action based on property were routinely unsuccessful despite vague suggestions from the Supreme Court in the 1920s. For the middle twenty-five years, the courts were largely silent, with property rights litigation barely registering on the Supreme Court’s radar. But for the past quarter century or so, arguments that would once have been considered novel and concomitantly futile have gained substantial traction in the courts, especially the Supreme Court.
4 BRIGHAM-KANNER PROPERTY RIGHTS CONF. J. 39 (2015)