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This Article considers what law should apply in resolving subsidiary questions that arise in the course of deciding takings cases under federal constitutional law. It argues that there are three choices: federal constitutional law, state law, or a federal-patterning definition that lays down certain general parameters as a matter of federal constitutional law but otherwise follows state law if it is consistent with these parameters. The article illustrates these choices by considering a recent Supreme Court decision, Murr v. Wisconsin, which held that the horizontal dimensions of a “parcel of land” should be determined, for takings purposes, as a matter of federal constitutional law. It argues that the wholesale federalization of the issue in this context was misguided. A better solution would be to adopt a federal-patterning definition of “parcel,” which would largely resolve the issue by looking to applicable state law unless affirmative evidence shows that parcel boundaries have been manipulated to manufacture a takings claim.


Law | Property Law and Real Estate


Originally published in the William & Mary Brigham-Kanner Property Rights Journal.