Abstract
The U.S. Supreme Court’s takings jurisprudence is shaped by an unusually strong reliance on doctrinalist methods of interpretation and reasoning. From Pennsylvania Coal Co. v. Mahon to Penn Central Transportation Co. v. City of New York to Kelo v. City of New London, the Court heavily consults its past takings decisions or refers to the tests, principles, or standards from those decisions as epistemic guides to draw meaning from the Takings Clause. This long history of takings doctrinalization, however, was abruptly disturbed in Nollan v. California Coastal Commission and Dolan v. City of Tigard. There, Justices Scalia and Rehnquist each crafted, in separate opinions, two sequential parts of the Court’s new federal exaction doctrine by borrowing wholesale from exaction tests created by state supreme courts to guide the Court’s effort to establish an exaction jurisprudence under the Takings Clause.
Notwithstanding this paradoxical moment of “takings federalization”—that is, federal borrowing of state doctrine to inform and shape federal takings jurisprudence—the Court immediately reverted to its doctrinalist roots and habits in subsequent takings cases and, to date, has not returned to the method of consulting state doctrines practiced in Nollan and Dolan. Why is this? What explains this short-lived departure from and rupture in federal doctrinalist methods for the unorthodox reliance on state court doctrines? No scholar has explored this unexplained phenomenon. This Article endeavors to answer these puzzling questions and offer an explanation for why the Court federalized state exaction doctrines in Nollan and Dolan, but nowhere else in its modern takings jurisprudence.
This Article argues that the Supreme Court is unlikely to federalize state takings doctrines unless or until several limited conditions have ripened: the clear absence of federal precedent, the sufficient development and maturity of state court doctrines, and the effective advocacy by litigants and amici curiae to draw attention to the value of consulting state court doctrines as appropriate sources to inform federal takings jurisprudence by litigants and amici curiae. These conditions were sufficiently ripe for takings federalization in Nollan and Dolan. This Article then explores this new ripeness framework by examining the Supreme Court’s recent ruling in Sheetz v. County of El Dorado which found that legislatively-enacted exactions, like administrative takings, are subject to the Court’s federal exactions scrutiny. The Article concludes, however, that the conditions in Sheetz were not ripe for takings federalization. While the Court decided Sheetz to address the division of state court rulings on the question, the Court did not establish new or modify existing exaction jurisprudence by relying upon, borrowing or adopting state court exaction doctrines. The Court simply expanded the reach of its preexisting federal exaction doctrine without borrowing from the states. The application of the ripeness framework to future takings cases, nevertheless, offers scholars and jurists a workable and intelligible framework to guide the Court in determining whether, when, and how to appropriately exercise takings federalization.
Recommended Citation
Gerald S. Dickinson, Takings Doctrinalization, 81 Wash. & Lee L. Rev. 2095 (2025).Available at: https://scholarlycommons.law.wlu.edu/wlulr/vol81/iss5/7
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