Per Se Non-Takings

Introduction

Contestation over methodology remains an enduring friction point in the discourse on the Takings Clause. For decades, the Supreme Court’s takings jurisprudence has vacillated between categorical, per se reasoning and contextual, ad hoc inquiries into what fairness and justice require when the government harms or expropriates private property.^[1]

Against this backdrop, it has become rote to view methodological conflicts over rules versus standards in takings as proxies for disagreements about the underlying strength of constitutional protection for property.^[2] Formalist reasoning is often understood, then, to underwrite classical liberal conceptions of private property that favor relatively strong constitutional protection from state interference. Conversely, standards are seen to elevate more communitarian, social, or ecological conceptions of property that tend to privilege public imperatives. Indeed, it is common fare for commentators to note that owners tend to prevail when courts apply per se rules, while the government is on much better footing when courts apply the ad hoc framework described in the Supreme Court’s opinion in Penn Central Transportation Co. v. New York City.^[3]

But just how clear is this connection between form and substance in takings?^[4] It is readily evident that the contemporary Court is increasingly embracing the hard-edged formalist end of the hoary rules–standards spectrum in siding with takings claimants.^[5] However, lurking in the shadow of this recent turn is a surprisingly wide array of instances in which the legal system has rejected claims for takings compensation in rule-like, categorical terms.^[6] Examples of what this Article calls per se non-takings are truly legion—with many lurking in the lower courts, others teased out of Supreme Court decisions, and some derived from broader legal changes. Taxonomically, the Article groups this body of law into two overarching classes. The first includes a diverse collection of limitations that courts have understood to serve as inherent constraints on property rights. The second involves instances in which the property interest at issue is clearly recognized but the legal system nonetheless categorically denies takings liability based on overriding substantive policy justifications.

Many examples in the first grouping involve what the Supreme Court has identified as “background principles” of property law that obviate takings liability because they reflect limitations to specific rights in the metaphorical property bundle that “inhere” in ownership.^[7] Thus, regulations that restrict the right to use and enjoy property in ways that mirror the operation of nuisance law and similar common law doctrines are immune from takings challenges. So, too, are an array of limitations on the right to exclude, including public accommodations, cemetery access rights, and instances where the government becomes an owner through adverse possession.^[8] Courts have similarly recognized forms of reserved public ownership that act as limitations on private property, as with the public trust doctrine, navigational servitudes, public ownership of wildlife, the ambulatory coastline doctrine, and public easements associated with the modern version of the ad coelum doctrine.^[9] A more fundamental variation on this approach to defining the boundaries of property involves instances where the legal system declares an economic or other interest simply not to be legitimate “property” at all, without providing compensation to those who formerly held such interests.^[10] This is most evident in the abolition of enslavement, although other examples of uncompensated structural shifts in property norms redound in the history of American property law.^[11]

As for the second grouping—justified non-takings—well-recognized “emergency” and necessity exceptions present classic illustrations.^[12] Other examples include law enforcement, investigations, and national security activities.^[13] Relatedly, liability in the face of harm to an otherwise cognizable property interest is sometimes denied because courts simply consider the Takings Clause inapplicable.^[14] This can be seen most clearly in the distinction between takings and taxes, where the government routinely appropriates what is undoubtedly someone’s property. The phenomenon appears as well with civil and criminal forfeiture, which courts categorically deem non-takings, as well as instances where courts find the Takings Clause not to apply because other constitutional or common law remedies are available.^[15]

Surveying the breadth and complexity of these myriad examples of per se non-takings holds doctrinal and conceptual lessons for the discourse on constitutional property. Descriptively, capturing the range of categorical exclusions in a holistic account—an important contribution in its own right—provides a unified understanding of the texture of categorical reasoning in takings law.^[16] Bringing per se takings and per se non-takings together shows common analytical challenges that emerge across these mirror opposites. Throughout the entire jurisprudence, seemingly clear “rules” carry an inherently contingent logic of threshold conditions as well as inescapable exceptions and qualifications that operate in standards-like ways.^[17] This suggests an inexorable instability in the rules–standards divide that the Supreme Court is likely to face as it continues to move takings jurisprudence in a more formalist direction.^[18]

The Article’s holistic examination of per se non-takings, in turn, highlights the remarkable range of values underlying categorical denials of constitutional protection for property. No single overarching justification unites this varied jurisprudence, with some interests in our view normatively attractive and others decidedly less so. But recognizing the rich pluralism of justifications in per se non-takings underscores the unavoidability of grappling with public imperatives in questions of compensation, even when approaching takings through categorical reasoning.^[19]

That normative pluralism, finally, provides a novel argument for decoupling the linkage between methodology and the substantive strength of property rights. It is simply not the case that more formalist, rule-like approaches necessarily yield greater protection for private property, just as it is theoretically possible that standards could be directionally more property protective. The balance between public imperatives and private rights in takings could—and arguably should—determine the level of protection that the Constitution provides for property owners rather than the nature of doctrinal reasoning. If the current Supreme Court majority thinks that embracing a rule-like structure to delineate property rights will lead to clear and determinative liability that serves as a check on the state, they must grapple with the extensive history of per se exclusions and immunities from takings that largely reinscribe the same contestation embodied in ad hoc examination of fairness and justice. That is not to argue naively that the Court will easily or even necessarily do so, but rather that they should.

* * *

The Article proceeds as follows. Part I recounts the history of methodological contestation in takings jurisprudence, noting the contemporary ascendancy of per se over ad hoc approaches. It then explains the conceptual stakes of this instantiation of the rules–standards debate, detailing what property scholars really argue about when they argue about form and substance in takings. Part II turns to cataloging the wide array of arenas in which the legal system has recognized some version of a categorical bar to takings compensation. Finally, Part III engages with the implications of this exegesis of per se non-takings, deepening our understanding of constitutional methodology and illuminating ways in which the range of justifications inherent in per se non-takings undermines the link between form and substance in takings.

To be clear, there are reasons to be wary of formalism in takings, and this Article does not argue in favor of categorical over contextual methodology in this space.^[20] Rather, it takes as a given that the Supreme Court is at a particularly hard-edged, rules-oriented methodological moment in constitutional property, within which it seems to be valorizing a relatively absolutist view of property at most every turn. Given that, there is value—and urgency—in recognizing that per se reasoning can lead to non-liability that vindicates public imperatives as much as it can to liability that constrains the state. And that means that normative contestation will continue, just displaced into new categorical terms.

I. Rules Versus Standards in Takings: Understanding the Per Se/Ad Hoc Debate

Appreciating the vast substrate of categorical exclusions to takings liability as the Supreme Court increasingly leans more towards rules over standards requires understanding methodological debates that have long occupied takings theory. Accordingly, the first section of this Part sets out the conventional historical account of the Court’s vacillation in this regard since the earliest days of modern takings jurisprudence. In some eras, the Court has elevated contextual, multi-factored standards, which it has famously described as “ad hoc.”^[21] In other eras—and increasingly so in the present day—the Court has lionized seemingly hard-edged, rule-like formulations, often inscribing “per se” liability.^[22] The second section, in turn, explains that this vacillation has inspired lengthy arguments about the interplay between methodology and the nature of property rights.^[23] Together, these sections set the stage for the claim in Part II that the conventional narrative of the Court’s vacillation between ad hoc cases where the public has generally prevailed and per se approaches that have vindicated property rights obscures the bevy of per se non-takings.

A. Methodological Vacillation and the Emergent Per Se Era in Takings

Property presents an inescapable tension. Many of property’s benefits emanate from owners’ ability to make decisions on the belief that the scope of their holdings will remain relatively stable. At the same time, society must be able to align the meaning of ownership over time with changing social, economic, and moral perspectives. The Constitution’s Takings Clause mediates this tension by providing outer boundaries on the scope of the state’s authority to regulate property absent compensation.^[24]

The Takings Clause has not always served this role. Jurists and scholars generally agree that the Clause originally ensured protection only against uncompensated physical acquisitions,^[25] such as the government’s appropriating privately owned land to build forts. Yet, as frequently recounted in takings literature, the dawn of what is today commonly known as regulatory takings came in the Supreme Court’s 1922 decision in Pennsylvania Coal Co. v. Mahon.^[26] Regulation that goes “too far,” Justice Oliver Wendell Holmes wrote for the Mahon majority, “will be recognized as a taking.”^[27] Wrestling with just how to determine when a regulation goes too far has been the story of takings law ever since.

Conventionally, the Court has been understood to shift its takings jurisprudence between categorical liability rules and, over time, a shrinking pool of cases involving standards-oriented approaches. To recount the conventional narrative, this section roughly divides the Court’s shifts into four periods over the past half-century, the last of which comprises the contemporary turn where categorical liability rules are ascending.

1. 1960–1978: The Rise of Standards in Takings.—There were some suggestions at the outset in Mahon that evaluations of whether a regulation went “too far” would focus exclusively on an economic comparison.^[28] Under this rule-oriented approach, courts would simply measure the pre-regulation economic burden distribution against the post-regulation economic burden distribution.^[29] If these measurements revealed that the claimant did not gain an “average” reciprocity of economic advantage from the challenged regulation, takings liability would attach.^[30] The Mahon Court concluded that a state statute requiring mine owners to keep coal in place to avert surface subsidence did not secure such an advantage for the miners but, rather, unconstitutionally redistributed value to the surface owners.^[31]

The Supreme Court’s 1960 opinion in Armstrong v. United States,^[32] however, laid a foundation for a different, more standards-centric approach.^[33] In Armstrong, a shipbuilder had contractually promised to construct eleven boats for the U.S. Navy.^[34] When the shipbuilder defaulted, the federal government exercised an option on the contract that required the shipbuilder to transfer to the government title to any unfinished boats and the materials on hand that were essential to their completion.^[35] The shipbuilder, though, had not yet paid for the materials, and the materials producers sued, arguing that the government had extinguished their liens on those materials in violation of the Takings Clause.^[36] The Armstrong Court accepted this argument,^[37] and in so doing, explained that the “Fifth Amendment’s guarantee that private property shall not be taken for a public use without just compensation was designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.”^[38]

In a celebrated 1964 law review article, Joseph Sax leaned on this language to frame takings compensation as an appropriate “bulwark against unfairness, rather than [as Mahon had suggested] against mere value diminution” resulting from the burdens of regulation.^[39] Instead of fixing property interests in reference to existing economic values, Professor Sax argued that property should be defined as “the value which each owner has left after the inconsistencies between . . . competing owners have been resolved.”^[40] On this view, courts tasked with adjudicating takings claims must ask “against what qualitative kinds of value-diminishing acts . . . existing values [should] be insulated.”^[41] In short order, Professor Sax’s account would play a central role in the development of a context-sensitive, standards-based takings doctrine.

This trajectory culminated in 1978, when in Penn Central Transportation Co. v. New York City the Supreme Court relied heavily on the work of Professor Sax and another takings luminary—Frank Michelman^[42]—in setting out a non-exclusive list of considerations that courts should take into account in attempting to evaluate whether a given regulatory imposition is fair and just absent compensation.^[43] To determine when “‘justice and fairness’ require that economic injuries caused by public action be compensated by the government, rather than remain . . . concentrated on a few persons,” the Court instructed the lower courts to “engag[e] in . . . ad hoc, factual inquiries” that include considering not only the economic impact of the regulation on the claimant but also the regulation’s “character” and the extent to which it has interfered with the claimant’s “investment-backed expectations.”^[44] The work of Sax and Michelman had been understood to that point as supporting an interpretation of the Takings Clause that afforded compensation in only narrow instances.^[45] Perhaps unsurprisingly, then, Penn Central’s standards-based approach became synonymous in takings discourse with placing a strong thumb on the scale in favor of government.^[46]

2. 1979–2000: Early Shifts Toward Categorical Reasoning.—Then-Justice William Rehnquist penned a dissent in Penn Central that endorsed a far more rule-oriented approach. He suggested that takings liability should attach whenever the government acquires a “servitude” that limits “an owner’s use.”^[47] A shift in that categorical direction would be memorialized doctrinally just a year later. In Kaiser Aetna v. United States,^[48] with Justice Rehnquist writing for the majority, the Court found a taking where the federal government claimed as publicly accessible a marina made navigable by a landowner’s effort to dredge a channel to the ocean, apparently with a federal agency’s approval.^[49] Portions of the majority opinion reflected the contextual analysis established in Penn Central.^[50] However, Kaiser Aetna’s concluding passage made no mistake about its categorical thinking regarding one particular incident of property: the “right to exclude.”^[51] This incident, wrote Justice Rehnquist, is “fundamental,” and the government must “pay . . . just compensation” whenever it interferes with this right through “an actual physical invasion.”^[52]

Building from Kaiser Aetna, the Court, three years later in Loretto v. Teleprompter Manhattan CATV Corp.,^[53] held that takings liability attaches where a regulation results in a forced, permanent physical occupation of land by a stranger, regardless of the public interests at stake.^[54] Justice Thurgood Marshall wrote for the Court that “permanent occupations of land by such installations as telegraph and telephone lines, rails, and underground pipes or wires are takings even if they occupy only relatively insubstantial amounts of space and do not seriously interfere with the landowner’s use of the rest of his land.”^[55] Lower courts have construed this assertion as suggesting that an owner’s freedom to reject even the slightest permanent physical occupation of their land by a stranger is a principal interest so respected that it can never be altered absent compensation, even for exceedingly important public purposes.^[56]

In its 1987 decision in Nollan v. California Coastal Commission,^[57] the Court both expanded and contracted Loretto’s reach.^[58] From the pen of the recently appointed Justice Antonin Scalia—an outspoken proponent of understanding “the rule of law as a law of rules”^[59]—the Court deemed “permanent” the state’s imposition of a public easement to walk up and down the dry sand fronting the Pacific Ocean “even though no particular individual is permitted to station himself permanently upon the premises.”^[60] The Court would soon double down in a companion case, Dolan v. City of Tigard,^[61] asserting that requiring a landowner to “dedicate a strip of land . . . for public use” (including to address public safety concerns regarding river flooding) would “[w]ithout question” deprive that landowner of the right to exclude, “‘one of the most essential sticks in the bundle of rights that are commonly characterized as property.’”^[62]

Admittedly, while extending the rule announced in Loretto, Nollan and Dolan also contracted that same Loretto rule. Together, this pair of cases conceded that the state could condition a discretionary permit on a permanent physical dedication—i.e., on a demand that otherwise would constitute a per se taking under Loretto—yet avoid takings liability so long as it could prove that the dedication bore an “essential nexus” to and stood in “rough proportionality” with the impacts that the landowner’s proposed development would generate.^[63] However, the broad expansion of Loretto’s per se rule in Nollan and Dolan—to cover not merely permanent occupations but also permanent access rights—far exceeded this narrow contraction of that same rule.

The categorical trend in the Court’s takings jurisprudence continued with a series of decisions in the 1990s, spurred in part by Richard Epstein’s rebuke of Professor Sax’s influential position staked two decades prior.^[64] Most prominently, in Lucas v. South Carolina Coastal Council, the Court—citing Professor Epstein’s critique of the Court’s “eschew[al]” of any “set formula” in Penn Central—declared in 1992 that a regulation which deprives real property of all economically viable uses categorically requires takings compensation if legally viable uses of that property exist absent the regulation.^[65] In 1997, the Court in Babbitt v. Youpee^[66] held that a restriction on the right to pass property to others upon one’s death in an effort to consolidate splintered tribal allotments amounted to a taking per se even where the income generated from that property was de minimis.^[67] And in Phillips v. Washington Legal Foundation^[68] in 1998, the Court held that “[i]nterest earned on client funds held in IOLTA accounts” is cognizable as private property “for purposes of the Takings Clause” even where any interest the client could have earned on those funds was “not likely to be sufficient to offset the cost of establishing and maintaining” a private, interest-bearing account.^[69] In each of these high-profile cases, takings rules yielded takings liability.

3. 2001–2009: Re-Emphasizing Standards.—The Supreme Court’s move toward categorical reasoning would not continue unabated, with the dawn of the twenty-first century heralding something of a resurrection for contextualization in takings. With both Justice Sandra Day O’Connor and Justice Anthony Kennedy embracing standards-based inquiries, Penn Central returned to a position of prominence. The Court’s disinclination toward categorical liability rules in this period is best illustrated by a trio of cases between 2001 and 2005: Palazzolo v. Rhode Island,^[70] Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency,^[71] and Lingle v. Chevron U.S.A. Inc.^[72]

In Palazzolo, the Court held that where a claimant purchases property after a regulation is adopted, trial courts should address “the merits of petitioner’s [takings] claim under Penn Central” to determine whether that regulatory imposition “is so unreasonable or onerous as to compel compensation.”^[73] Palazzolo produced dueling concurrences from Justices O’Connor and Scalia. While Justice Scalia advocated that takings analysis should be limited to the impact of the challenged regulation on the claimant, Justice O’Connor asserted that whether the claimant knew or should have known about that regulation’s existence, as well as its “purposes served” and the “effects produced” by the regulation, all matter in the takings calculus.^[74] “The temptation,” wrote Justice O’Connor, “to adopt what amount to per se rules . . . must be resisted. The Takings Clause requires careful examination and weighing of all the relevant circumstances in this context.”^[75]

In Tahoe-Sierra, the Court seemed to resolve this debate in Justice O’Connor’s favor. A six-Justice majority, which still included Justice O’Connor and Justice Kennedy, rejected a claimant’s contention that a development moratorium should be deemed a categorical taking of all economically viable uses regardless of any public interest the moratorium advanced.^[76] Instead, declared the Court, “[t]he Takings Clause requires careful examination and weighing of all the relevant circumstances” through the “Penn Central inquiry.”^[77]

And in Lingle, Justice O’Connor, writing for a unanimous Court, asserted that, outside the “relatively narrowly categories” described in Loretto and Lucas, “regulatory takings challenges are governed by the standards set forth in Penn Central.”^[78] Reiterating a declaration made in an opinion issued shortly after Armstrong, the Court reaffirmed that there is no “‘set formula’ for evaluating regulatory takings claims.”^[79] It seemed at that point, then, that the contextualized analysis built on Armstrong’s fairness-and-justice standard and the considerations to implement it set forth in Penn Central stood firm.^[80]

4. 2010–Present: The Return of Per Se Reasoning.—In hindsight, Lingle would serve as the pinnacle of the latest period of standards-based—and, to many observers, government-friendly—inquiries in Supreme Court takings jurisprudence. While there are examples to the contrary,^[81] the doctrine over the past two decades has evinced an increasing turn toward formalist, category-laden reasoning in service of takings claimants.

The first sizable hint came in 2010’s Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection.^[82] Shortly before the case, John Roberts and Samuel Alito joined the Court, succeeding Chief Justice Rehnquist and Justice O’Connor, respectively.^[83] A four-Justice plurality opinion authored by Justice Scalia in Stop the Beach—joined by the two newest appointees—asserted that takings liability attaches where a state declares that “what was once an established right of private property” at common law “no longer exists.”^[84] It would be difficult to implement a broad and unqualified rule that conceivably would deem unconstitutional (absent compensation) laws in areas that we today take for granted—such as the environment, antidiscrimination, predation, equitable distribution, and the like—simply because they at one time altered the status quo.^[85] On its face, though, the per se nature of the plurality’s declaration is evident: any change in established law is a taking.^[86] Perhaps in light of this reality, Justice Kennedy—who had concurred only in the judgment in Lucas and criticized the categorical nature of Justice Scalia’s majority opinion in that case^[87]—declined to endorse the Stop the Beach plurality’s understanding of the Takings Clause.^[88]

Next came the Court’s 2013 decision in Koontz v. St. Johns River Water Management District.^[89] As noted, Nollan and Dolan had shifted the burden of proof to the state when attaching a condition to a development permit that would otherwise amount to a per se taking.^[90] In Koontz, the state had proffered that a landowner could build in a protected wetland only if he paid contractors to replace culverts to enhance state-owned wetlands nearby.^[91] Despite the long-standing distinction between taxing and takings,^[92] Justice Alito explained for a 5–4 majority that the fiscal permit condition was subject to Nollan and Dolan’s strictures because it burdened “a specific parcel of real property.”^[93] Since Nollan and Dolan scrutiny arose—at least at the time—only on the prerequisite that the permit condition amounts to a per se taking outside the permitting process, it logically follows from Koontz that a monetary demand that “operate[s] directly upon . . . an identified property interest” must itself categorically require the payment of takings compensation.^[94] If only in the context of the threshold inquiry for Nollan and Dolan’s heightened scrutiny, Koontz thus expanded the range of government regulations that qualified as per se takings.

In 2015’s Horne v. Department of Agriculture,^[95] farmers challenged a federal mandate to set aside a portion of their raisin harvest for off-market distribution (including for school lunch programs), a scheme Congress had designed during the New Deal to stabilize market prices so raisin farming could remain profitable.^[96] While the Court leaned on the per se nature of the rule announced in Loretto and expanded in Nollan, it quietly dismissed those cases’ references to “permanent physical occupations.”^[97] In its place, Horne described Loretto as having “reaffirmed the rule that physical appropriation of property gave rise to a per se taking . . . .”^[98] From that reconstruction, it was a short step for the Court to declare that the state “has a categorical duty to pay just compensation” to these farmers for the appropriated portion of their raisin harvests.^[99]

Justice Kennedy joined the bare majorities in Koontz and Horne.^[100] Perhaps, though, he saw those decisions as narrowly focused, for he commanded his own 5–4 majority in 2017 in Murr v. Wisconsin,^[101] stressing Penn Central’s continued prominence in the bulk of property regulation contexts.^[102] However, Justice Ruth Bader Ginsburg joined Justice Kennedy’s opinion in Murr, and neither Justice remains on the bench today.^[103] With six Justices joining the majority in the Court’s 2021 decision in Cedar Point Nursery v. Hassid,^[104] the shift in takings law in rules-oriented directions seems destined to continue for the foreseeable future.^[105]

Cedar Point Nursery involved a takings challenge to a California regulation entitling union organizers to visit workers at their workplace before and after their shifts and during lunch breaks for up to four thirty-day periods throughout the year.^[106] The Court concluded that regulations affording any physical access to properties not open to the public—no matter how temporally or functionally constrained and however minimal the effect on the property’s use and value—categorically require takings compensation unless the access privileges inhered in the claimant’s title via the common law or were legitimately attached to a permit discretionarily issued to the claimant.^[107]

In the 2023–2024 term, the Court decided its latest major takings case, Sheetz v. County of El Dorado.^[108] At issue in Sheetz was whether Nollan and Dolan’s heightened scrutiny applies not only to permit conditions that are administratively imposed on a case-by-case basis and would amount to per se takings if demanded outside the permitting process, but also in instances in which the government mandates permit conditions via legislation.^[109] The Court unanimously concluded that at least some legislatively imposed land‑use conditions and fees are subject to such scrutiny.^[110] It is unclear whether the Court was assuming that the traffic fee schedules in Sheetz should be construed as per se takings outside the permitting process. If so, the decision reflects a marked extension of categorical liability in takings. Even if not, though, the Sheetz Court unearthed in dicta a range of other arguments that, if fully endorsed, would steer takings law more generally in a categorical direction. For example, the decision celebrates the discredited practice of conceptual severance, which would expand the reach of Lucas’s categorical rule by allowing claimants to divide their property interests in a manner that makes a regulation appear so intrusive as to eliminate its economically viable uses.^[111] For another, Sheetz indicates support for the judicial takings theory endorsed by the Stop the Beach plurality, unconditionally asserting that alteration of any established property right by any branch of government amounts to a taking.^[112] At minimum, then, Sheetz sends signals of the increasingly per se turn in takings.

* * *

In sum, on the conventional account of takings law’s development over the past century, the Supreme Court began in the 1980s to chip away at its then-longstanding reliance on contextualized, government-friendly standards by endorsing select formal liability rules favorable to takings claimants. The Court re-celebrated standards-based approaches that provided flexibility to state regulators at the turn of the century, before reverting to what would become a formidable slate of ownership-protective categorical liability rules beginning with the first takings decision of the Roberts Court in 2010. These directional changes, of course, have not occurred in neat 180-degree turns; as noted, the Court has in otherwise government-leaning standards-laden periods handed down some claimant-leaning rules-oriented decisions, just as it has in rules-heavy periods leaned toward standards in some cases. Moreover, the contemporary ascendancy of categorical liability rules should not be overstated; after all, many takings challenges remain subject to standards-oriented analyses. The general trendlines, though, are readily evident.^[113]

B. What We Argue About When We Argue about Takings Methodology

The takings narrative offered above theoretically could be analyzed as reflecting genuine contestations regarding the comparative merits of divergent legal methodologies. In the longstanding rules-versus-standards debate, some commentators praise rules for limiting the discretion of legislators and judges, thereby fostering transparency and predictability.^[114] In turn, on this view, investors, owners, developers, and others can more confidently commit resources to capital projects, increasing the likelihood that resources will be put to their highest and best use.^[115] By contrast, other commentators celebrate standards for accommodating complex and evolving perspectives and goals more flexibly and purposively.^[116] From this perspective, rather than undermining the rule of law, the particularity of standards allows legal institutions to more readily center questions of individual justice, providing a situatedness that can help obviate the potential for arbitrary over- and under-inclusiveness of rigid rules.^[117]

Debates surrounding these and many other alleged virtues (and vices) of competing methodological approaches are persistent in the takings discourse and, as they are with respect to many other areas of law, are no doubt important. Our focus in articulating the conventional account of takings law’s shifts from contextualized standards to formal liability rules, though, lies not in the abstract relative merits of each methodological approach but, rather, in the presumed linkage between form and substance. That is, formalist reasoning in takings is conceived conventionally as concomitant with strong constitutional protection for property against government regulation, while non-formalist reasoning is associated with a more contingent understanding of property deferential to regulators.

Various scholars have observed as much in the property literature. Margaret Radin has spoken to the ways in which affinities for “hard-and-fast pre-existing rules” are often “intertwined” with classical liberal conceptions of property—conceptions that recognize robust rights to possess, use, and dispose of resources as the owner chooses.^[118] Similarly, Thomas Merrill has portrayed “property rights advocates” as routinely “casting about for new or expanded categorical rules.”^[119] And, in the same vein, Marc Poirier has explained that the “trope about the need to make takings doctrine more rule-like . . . tends to be understood to express . . . static property rights versions of property . . . .”^[120] According to Duncan Kennedy’s well-known dichotomy, such a penchant for rules aligns with the thought process of those he terms “individualists,” i.e., those who indulge preferences for their own interests.^[121]

Meanwhile, to Kennedy, “altruists”—who emphasize the qualities of “sharing and sacrifice”—are more inclined toward standards.^[122] This latter description captures a competing general propensity to favor standards over rules on the part of those who oppose takings liability in the face of redistributive adjustments made in pursuit of various public aims. Where rules, as Poirier explained, are perceived as linked to stasis in the contours of ownership, standards are perceived as linked to malleability.

We do not contend here that these propensities and perceptions are completely untethered from jurisprudential realities. Indeed, while empirically assessing the impacts of takings law is riddled with difficulties, data on reported decisions suggests that the state is far less likely to prevail when categorical liability rules are at play than when Penn Central’s contextualized analysis is employed.^[123] Our analysis ahead, though, seeks to denaturalize the tendency to link rules with takings liability and standards with non-liability in important ways. As we explore below, there is, in fact, a non-trivial undercurrent of formal rules—much of it in the lower courts, but in some instances derived from Supreme Court decisions—that obviate the need for a contextualized takings analysis by categorically immunizing the state from takings liability.

To understand our demarcation regarding this body of case law, one can compare its targeted approach to the broad collection of sub-inquiries that constitute the contextualized analysis from which it departs. A contextualized takings analysis’s sub-inquiries can be grouped loosely under the three headline considerations set out in Penn Central itself. Under the umbrella of the “character of the government action,” courts routinely delve into the extent to which the challenged regulation advances the general welfare, confers reciprocal advantages, singles out particular parties, prevents harm, resolves unavoidable conflicts, implicates core interests, and furthers especially important regulatory goals.^[124] As for the parties’ reasonable “investment-backed expectations,” courts often seek to distinguish hopes-and-plans from “vested” rights, ask whether the challenged regulation pre-dated or post-dated the claimant’s purchase or investment, and assess the regulation’s consistency with “background customs,” among other issues.^[125] Finally, with respect to “economic impact,” courts determine the baseline against which the challenged regulation’s aggregate impact will be measured, evaluate that aggregate impact, and explore the extent to which valuable uses of the property remain.^[126]

In contrast, a per se non-taking occurs when one issue—perhaps relating to one of these sub-inquiries, perhaps something else entirely—resolves the case on categorical grounds for the government, regardless of how one might answer all of the remaining sub-inquiries. In such a case, the contextualized Penn Central analysis is unwarranted.

It follows from this discussion that the conventional account offered in the preceding section, though jurisprudentially accurate as far as it goes, is meaningfully incomplete. That conventional account seems to allow just three resolutions of takings cases: claims deemed takings under formalized rules, select claims deemed takings under a contextualized analysis, and a larger subset of claims deemed non-takings under that same contextualized analysis. But, as we will illustrate, formalism exists as a bookend on both sides of the space subject to contextualized takings inquiries. Takings cases are thus most appropriately divided into four, not three, groupings: per se takings, contextualized takings, contextualized non-takings, and per se non-takings.^[127] It is to cataloging this fourth quadrant that we now turn.^[128]

II. Mapping Per Se Non-Takings

With the jurisprudential and conceptual foundations outlined above in place, this Part turns to mapping the breadth of doctrinal arenas where the legal system has taken a formalist, rule-like approach to denying takings liability. While their normative and practical justifications differ significantly, the doctrines reviewed in this Part generally share a common formulation: a state actor alters, expropriates, harms, or even destroys an alleged interest in property in some way that could plausibly give rise to an obligation to provide takings compensation, yet categorically does not.^[129]

This Part divides the landscape of these per se non-takings into two broad arenas.^[130] In the first, courts have defined property in a manner such that no interest exists that is capable of being taken. In the second, courts have concluded that, while a property interest exists that is capable of being taken in the face of certain state actions, takings liability is categorically forestalled because the specific state action at issue is either justified by an overriding policy imperative or relevant concerns are addressed by another remedial tool.^[131]

A. Inherent Limitations in Property Rights

The per se non-takings in this section include background limitations that inhere in property via the common law and statutes, reservations of public ownership, and instances in which the legal system declares that a claimed interest is not legitimately understood as property at all.

1. Limitations that Inhere through “Background Principles”.—The Supreme Court has declared that it “assuredly would permit[,]” without compensation, a regulation that codifies a regulatory safeguard or obligation that “inhere[s] in the title itself, in the restrictions that background principles of the State’s law of property and nuisance already place[d] upon land ownership.”^[132] A takings claim fails at the outset, the Court has explained, “if the logically antecedent inquiry into the nature of the owner’s estate shows that the proscribed use interests were not part of his title to begin with.”^[133] In other words, if a regulatory restriction mirrors what background property laws already proscribed, there is per se no takings liability.^[134]

Takings law historically has turned to common law doctrines^[135] and a related collection of traditions,^[136] “fundamental” notions,^[137] “long recognized” conventions,^[138] and customary practices^[139] in search of these background principles, with statutory law of late proving a potential source, as well.^[140] Aspects of constitutional law—as with navigational servitudes—can fit the bill, too.^[141] This section surveys ways in which background principles have been construed, if at times only implicitly so, to categorically preclude findings of takings liability.

a. Nuisance as a Categorical Limit on the Right to Use.—At common law, a private nuisance amounted to an unreasonable and substantial interference with the use and enjoyment of another’s land,^[142] while a public nuisance consisted of the interference with a right “common to the general public.”^[143] Where a regulation seeks to prevent a harm against which a private claimant could secure protection in a common law private or public nuisance suit, the Supreme Court has reiterated time and again that takings liability does not attach.^[144]

The devil, though, is in the details of what is often referred to in the takings literature as this “nuisance exception.”^[145] Not all activity that imposes harm, of course, rises to the level of a nuisance. Therefore, determining whether a specific harmful activity amounts to a nuisance generally requires its own contextualized inquiry.^[146] Some lower court takings decisions could be interpreted as folding consideration of the harm-preventing nature of a regulation into the all-things-considered Penn Central analysis.^[147] Others, though, have proceeded along a more categorical track that steers clear of Penn Central altogether upon a finding of a common law nuisance analogue.^[148]

The contours of nuisance law generally are considered a construct of state law; therefore, it is often a state court pronouncement that leads to a federal constitutional challenge being deemed a per se non-taking. Interestingly, though, while the Supreme Court in Lucas remanded the matter for a state court to determine whether the challenged regulation precluded construction that would have amounted to a nuisance under South Carolina law, the Court itself explicitly identified two activities that it apparently saw as rising to the level of common law nuisances in all states, such that any state’s regulation precluding these activities is, in effect, a non-taking per se.^[149] On the private nuisance side, the Lucas Court declared that “the owner of a lakebed . . . would not be entitled to compensation when he is denied the requisite permit to engage in a landfilling operation that would have the effect of flooding others’ land.”^[150] On the public nuisance side, it proclaimed that even a requirement that a corporate landowner of a nuclear power plant remove “all improvements from its land upon discovery that the plant sits astride an earthquake fault” does not trigger a contextualized takings analysis because it mimics the common law commands of nuisance law.^[151] Driven, then, by what it appears a majority of the Justices deemed to be dictated by some universalized sense of harm, the Lucas Court’s pronouncements supplemented the work of the ordinary arbiters of nuisance law (state courts) by themselves articulating these two specific situations in which one consideration—the harm-preventing nature of a regulation—obviates the need to undertake the multi-sub-inquiry, context-sensitive analysis that ordinarily otherwise would attach in a takings case.^[152]

The justification behind this class of per se non-takings, if not always stated explicitly by the Justices or their lower court counterparts, is plain enough: constitutional law is not in the business of requiring the government to pay landowners to avoid substantially injuring their neighbors.^[153]

b. Rights of Access to Places of Public Accommodation.—Many limitations on property rights that inhere in title relate to access rather than use. Public accommodations law is a prime example. In Heart of Atlanta Motel v. United States,^[154] a motel owner leveled a takings challenge against a federal law that forbade owners of places of public accommodation from excluding people on the basis of race.^[155] The Court asserted that this federal law merely “codified the common[ ]law innkeeper rule[,] which long predated the Thirteenth Amendment.”^[156] And that common law rule, in turn, contained a general prohibition on unreasonable limitations on the right to access places open to the public.^[157] While assessing the reasonability of a government choice ordinarily would require attention to context, the Heart of Atlanta Motel Court jettisoned that course. Instead, it dismissed the very notion of takings liability in a single, summary sentence noting that the claim simply lacked “any merit.”^[158] More than 50 years later, the Court reiterated the continued validity of this categorical holding in Cedar Point Nursery v. Hassid, where it sought to distinguish—unsuccessfully, according to some commentators^[159]—between businesses, such as motels, that are “open to the public” and others, such as the agricultural businesses at issue in the case, that are not.^[160]

c. Adverse Possession by the Government.—In building public infrastructure, the state sometimes mistakenly installs portions of roadways or facilities on privately owned lands without acquiring those lands by eminent domain.^[161] Where private owners in these cases take extended periods to object to such encroachments, states at times assert that they hold title through adverse possession.^[162] Courts not only universally vindicate this state assertion of title but also categorically reject claims for takings compensation by the former, private owners.^[163]

In one leading example, Commonwealth Department of Parks v. Stephens,^[164] a Kentucky appellate court explained that where adverse possession has run against the original titleholder, the current titleholder—the state—is “no longer taking” property.^[165] The Ohio Supreme Court likewise held in State ex. rel. A.A.A. Investments v. City of Columbus^[166] that, where it emerged decades after construction was completed that two city streets occupied a portion of what a recorded deed deemed private property, the state held title to that land via adverse possession and thus was immunized against a takings claim.^[167]

The justifications behind categorically immunizing the state from takings liability in the event of adverse possession seemingly mirror those that are routinely leveled to justify adverse possession itself—protecting reliance interests, incentivizing productive use, administering boundaries, and the like. Where a common law duty to protect one’s property against adverse possession by the state inheres in title, these courts have said, the state’s claiming title by adverse possession does not entitle the former property owner to a contextualized takings analysis when that former property owner failed to fulfill that common law duty.

d. Cemetery Access Rights.—The common law at times affords relatives of deceased persons an easement in gross to access burial sites on private lands for purposes of visitation and maintenance.^[168] These access rights generally arise when individuals are interred on privately owned property with the then-landowners’ permission. Several courts have held that these common law cemetery access privileges categorically preclude takings liability. For instance, in Hunziker v. State,^[169] an Iowa court rejected a takings challenge to a regulatory prohibition on developing land in a manner that would interfere with a Native American burial ground.^[170] The court explained that “when the plaintiffs acquired title, there was no right to disinter the human remains and build in the area where the remains were located.”^[171] This limitation, said the court, “inhered in the plaintiffs’ title.”^[172] Similarly, in Davis v. May, ^[173] a Texas court denied takings compensation where the owner of land that completely surrounded a gravesite challenged a state statute affording relatives reasonable access to gravesites across such adjacent lands.^[174] The court explained that the claimant’s “title to the property was already burdened by [the] common law right” of burial access by necessity.^[175]

Courts have understood such burials to be conducted in reliance on an implicit promise by the owner that the rights of subsequent owners of the lands will be limited by these access rights.^[176] Categorically rejecting takings liability, then, seems grounded in the view that, in these cases, the deceased deserve undisturbed repose and that the living hold a core, inalienable right to reflect on and celebrate their descendants’ memory at their final resting place.^[177]

e. Statutes and Regulations as “Background Principles”.—In addition to the variety of common law doctrines incorporated into constitutional law as categorical exceptions to takings liability noted above, the Supreme Court has intriguingly hinted that statutes and regulations are another source of background principles of state property law that can come to inhere in title and, thus, obviate a contextualized takings analysis. Early suggestions of this possibility came in cases challenging permitting delays and planning moratoria, where the Court drew contrasts to “normal” land-use restrictions that naturally form an owner’s expectations.^[178] The suggestion became more explicit in 2001. In Palazzolo v. Rhode Island, the Supreme Court rejected the argument that an owner’s constructive notice of pre-existing statutes necessarily precluded takings challenges.^[179] In doing so, however, the Court noted that “a legislative enactment can be deemed a background principle,” while demurring in defining “the precise circumstances when” and how that transformation can occur.^[180]

In a series of cases that have followed Palazzolo, the Court has continued to gesture repeatedly to the possibility that positive law can come to inhere in title, without illuminating much further.^[181] Of course, not all statutes and regulations can ripen into background principles that bar compensation without undermining the very concept of regulatory takings. But the Court has been steadfast that there is some domain of per se non-takings that can derive from legislative enactment over time.^[182]

2. Reserved Public Ownership.—A related set of long-standing doctrines—in their own way, limitations that inhere in title to private ownership—involve situations in which courts recognize forms of reserved public ownership in a given property interest. These reserved public rights limit full private ownership and, thus, immunize from the contextualized review of Penn Central positive laws that recognize and amplify that reserved public interest.

a. The Public Trust Doctrine.—The Institutes of Justinian, codified in 535 C.E., stated that the “running water, the sea, and consequently the shores of the sea” are “[b]y the law of nature . . . common to mankind.”^[183] In the long wake of this ancient Roman declaration, English law came to see what became known as the public trust doctrine as protecting public rights to access and use navigable waters and tidal shores for fishing and transporting people and commercial goods.^[184] Over the course of these legal developments, though, the rationale shifted from one of nature’s bounty to one of functionality: Simply put, waterway access and use proved essential to the continued success of Europe’s growing merchant class.^[185]

Such rights of access and use were considered “inalienable.”^[186] Therefore, as the Supreme Court would later explain, when the English King formally conveyed private ownership of the land encompassing the thirteen original colonies in America, he did not convey these public trust rights.^[187] Rather, the American Revolution resulted in the conveyance of these royal rights to the legislatures of each of the colonies^[188] and, in accordance with the Northwest Ordinance of 1787, to all new states that were subsequently admitted on equal footing.^[189] Over the course of the twentieth century, public trust rights in the United States only expanded, with some states even conceiving of the doctrine as protecting public rights to recreate and socialize on navigable and tidal shores.^[190]

Against this backdrop, courts have routinely recognized the public trust doctrine as a form of reserved public rights that categorically immunizes the state from takings liability. For example, in Esplanade Props., LLC v. City of Seattle,^[191] the Ninth Circuit forewent the multi-layered Penn Central inquiry where the state of Washington denied the claimant’s application for permission to develop shorefront property.^[192] The court declared that the “background principles” of the state’s public trust doctrine “would have precluded development of the proposed project, and therefore . . . plaintiff’s claimed property right never existed.”^[193] The South Carolina Supreme Court similarly relied on the public trust doctrine in McQueen v. S.C. Coastal Council^[194] in refusing to analyze a takings challenge to the denial of bulkhead construction permits in tidal waters.^[195] More recently, in Nies v. Town of Emerald Isle,^[196] a North Carolina appellate court categorically rejected a takings challenge to an ordinance that authorized town officials to drive public safety and sanitation vehicles along privately owned dry sand beaches.^[197] The court explained that “[b]ecause public beach driving across the [claimant’s privately owned dry sand beach] is permissible pursuant to public trust rights, regulation of this behavior by the Town does not constitute a ‘taking.’”^[198] The ability to preclude this public access, explained the court, was “never part of the [claimant’s] ‘bundle of rights.’”^[199] Similarly, in Coastal Petroleum v. Chiles,^[200] a Florida court rejected a takings challenge to a prohibition on offshore drilling on the ground that the public trust doctrine authorized the legislature to exercise its “authority to protect the lands held in trust for all the people” without compensation.^[201] The rub is that, where public trust rights are at stake, there simply is no contextualized takings analysis to conduct.

b. The Federal Navigational Servitude.—The federal navigational servitude is related, but distinct from the state-based public trust doctrine. An aspect of the federal government’s constitutional authority to regulate interstate commerce, this servitude elevates the public’s interest in all lands below the ordinary high-water mark of all navigable waters.^[202] Such waters, as the Supreme Court has described them, are “the highway[s] of the world.”^[203] In Lucas, the Court specifically highlighted the reservation of the navigational servitude as an example of a background principle that serves as “a pre-existing limitation upon the land owner’s title.”^[204] The Court cited approvingly to its 1900 decision in Scranton v. Wheeler, which held that “in every grant of lands bounded by navigable waters where the tide ebbs and flows . . . there is reserved by implication the right to so improve the water front as to aid navigation for the benefit of the general public, without compensation to the riparian owner.”^[205] In other words, in such a situation, there is, per se, no taking.

Modern examples of the navigational servitude immunizing the government against takings liability abound.^[206] For instance, in U.S. v. Cherokee Nation of Oklahoma,^[207] the Supreme Court rejected a takings claim where the federal government removed sand from a riverbed that damaged mineral interests over which an Indian tribe held general sovereignty in light of its “dominant servitude.”^[208] Improving navigation, explained the Court, is “a power to which the interests of riparian owners have always been subject.”^[209] In another case, the Court explained that “[w]hen the Government exercises this servitude, it is exercising its paramount power in the interest of navigation, rather than taking the private property of anyone.”^[210] Where a state chooses to employ this “paramount” authority to recognize a “dominant” servitude, there simply is no need to undertake the full-scale Penn Central analysis; rather, non-liability is categorical.

c. The Ambulatory Coastline Doctrine.—Another doctrine with links to the public trust involves gradual and imperceptible shifts in the boundary between private and public ownership along waterfronts.^[211] In apparently every state, land that is gradually and imperceptibly added to tidal or navigable shores—through, for instance, current-driven sand deposits—is held by the upland owner.^[212] Meanwhile, in every state with the possible exception of Louisiana,^[213] lands that become submerged beneath these waters in the same gradual and imperceptible manner as a result of erosion, subsidence, or sea-level rise belong to the state.^[214] Where private landowners lose land to the state through this legal boundary shift, courts have consistently declared that the state is immunized from having to pay takings compensation.^[215] For a recent example, in W. Gulf Marine, Ltd. v. Tex. Gen. Land Office,^[216] a Texas appellate court held that the state became the owner of bayside lands that had been privately owned once those lands became submerged beneath Galveston Bay.^[217] The court accordingly affirmed a trial court decision summarily dismissing the (former) owner’s takings challenge.^[218] The sheer difficulty of identifying and measuring shifts of this sort with the naked eye seemingly has underlain not only the recognition of the ambulatory coastline doctrine but also courts’ decisions to deem regulatory articulation of this doctrine immune from takings review.

d. Public Servitudes Under the Modern Ad Coelum Doctrine.—As a federal appellate panel recently recounted, the ad coelum doctrine once professed “[t]o whomsoever the soil belongs, he owns also to the sky and to the depths.”^[219] However, the advent of flight resulted in a marked alteration in our understanding of this common law maxim. Concluding that the public’s interest in air travel counsels against takings for airspace intrusions, the Supreme Court declared in 1946 that the common law doctrine that “ownership of land extend[s] to the periphery of the universe . . . has no place in the modern world.”^[220] Today, regulations approving airway traffic except for those that authorize near-ground interferences appear categorically immunized against takings liability by what amounts to an airspace equivalent of the water-based navigational servitude.^[221]

e. Public Ownership of Wildlife.—A final example of reserved rights involves the public ownership interest in wildlife, which at least 48 states recognize in some form.^[222] Justifications surrounding this interest have evolved over time. Centuries ago, English monarchs drew on this interest to curry favors and raise revenues through the allocation of hunting privileges.^[223] In colonial America, the public’s ownership interest in wildlife reflected practical concerns for the preservation of food resources.^[224] Today, environmental and recreational pursuits play a justificatory role, too.^[225] While the full scope of this public interest remains uncertain, it has been interpreted in a number of cases to categorically shield wildlife regulations from takings claims—including, if only indirectly, at the Supreme Court.^[226]

In Horne v. Department of Agriculture,^[227] as noted, a farmer challenged a federal requirement under a New Deal-era program that he set aside part of his raisin harvest to stabilize market prices for growers.^[228] The government cited Leonard v. Earle,^[229] a 1929 case where the Supreme Court had upheld a Maryland requirement that oyster packers give a portion of their detached oyster shells to the state—which the state would disperse to promote oyster growth nearshore—in exchange for permission to harvest oysters in state waters.^[230] The Horne Court, however, distinguished Leonard on the grounds that “oysters, unlike raisins, were ferae naturae that belonged to the State under state law and ‘no individual ha[d] any property rights in them other than such as the state may permit him to acquire.’”^[231] Oysters, the Court concluded, are “public things subject to the absolute control of the state,” while raisins are “private property” as “the fruit of the growers’ labor.”^[232] On the logic of Horne, Leonard stands for the proposition that regulations that simply acknowledge or reflect the public’s ownership interest in wildlife are non-takings “absolute[ly].”

3. The Boundaries of Legitimate Property.—In some instances, the state redefines the underlying boundaries of property itself and our legal system denies compensation under the Takings Clause, reflecting a variety of normative commitments.^[233] This process of transition from an interest recognized by the legal system to one deemed non-commodifiable without compensation can be thought of as a species of per se non-taking.

The most notable—if surprisingly uneven, historically—example of this phenomenon was the abolition of enslavement.^[234] As early as the Founding Era, the question whether the United States could end enslavement without compensating the owners of formerly enslaved persons was a live legal issue and remained so until the Fourteenth Amendment explicitly resolved it.^[235] As William Treanor has noted, for example, in an 1819 letter to abolitionist Robert Evans describing a plan for the United States to use the proceeds from the sale of public lands to purchase enslaved people, James Madison commented that emancipation would require “compensating a loss of what [the enslaver] held as property guaranteed by the laws, and recognized by the Constitution.”^[236]

One early effort at emancipation and abolition—in the District of Columbia—did, in fact, involve compensation.^[237] Questions about compensation for abolition were also hotly debated in state constitutional law throughout the antebellum period.^[238] And, at the time of the passage of the Thirteenth Amendment, some opponents argued that compensation was due to enslavers.^[239] But the transition from a legal system that recognized the enslavement of people as a form of property to one that constitutionally barred the form ultimately happened without compensation.

In a similar vein, the Married Women’s Property Acts (MWPAs) of the nineteenth century fundamentally shifted the nature of property rights. In waves of legislative change at the state level, the Acts progressively extended property rights to married women, beginning with property they obtained by gift or inheritance, then recognizing separate property for married women, and finally eliminating coverture, the traditional formal legal subordination of wives to husbands.^[240] While some of these changes in the nature of entitlements were prospective, and thus did not implicate reliance on existing property rights, much of the shift impacted what married women (and their husbands) could do with their property in ways that in contemporary terms might be thought to require compensation for altering existing estates. The historical fact, however, is that none of the many MWPAs generated legitimate claims for takings compensation.^[241]

Our legal system has made other large-scale shifts in the system of property without compensation, including both the original expropriation of the land from Native Americans and the confiscation of Loyalist property after the American Revolution.^[242] These revolutionary changes to the nature of property without compensation admittedly occurred before the Supreme Court began applying the Takings Clause to regulations (or, with the conquest of North America, before we had a constitution).^[243] Moreover, in some cases there were other constitutional foundations for the changes—the Thirteenth and Fourteenth Amendments in the case of abolition, for example, and an understanding of the police power in state sovereignty that predated the incorporation of takings to the states in the case of changes to marital property.^[244] It is hard to deny, though, that this background surrounding some of the most momentous state redefinitions of the boundaries of legitimate property in our nation’s history is irrelevant to our understanding of the boundaries of liability and non-liability in the face of the same types of state redefinitions that today are the object of takings law.^[245]

B. Justified Takings

The preceding subpart explained that if courts confront a state measure reflecting a nuisance, a public accommodation, an accessway rooted in myriad doctrines (public trust, the federal navigational servitude, ad coelum, imperceptibly shifting coastlines, or cemetery visitation), the public’s interest in wildlife, or contemporary sensitivities regarding abolition and gender antidiscrimination, they often will not recognize any property interest that is capable of being taken. Instead, such measures will be deemed non-takings per se.

The doctrinal arenas surveyed in this subpart are distinct in that they involve courts confronting interferences with clearly recognized property interests that are capable of being taken—including, indeed, even privately owned homes. The first sub-section canvasses situations in which courts nonetheless decline to find takings liability because of some overriding policy interest advanced by the state measure being challenged.^[246] These imperatives include the need to respond to emergencies, the dictates of law enforcement, and national security concerns.^[247] The second sub-section explains, in a related but arguably more foundational vein, how courts categorically decline to conduct a takings review where other legal concerns seemingly are paramount, including in the realm of taxation, the operation of civil and criminal forfeiture, the recognition of Indian title, and instances in which alternative constitutional or common law remedies are available.^[248]

1. Exigencies and Necessities.—The doctrines in this section involve a variety of emergency, law enforcement, and national security imperatives that courts have found to obviate takings liability.

a. Emergencies and the Necessity Exception.—Among the longest-standing and best-recognized categorical approaches to nonliability are those involving the appropriation, damage, or even destruction of property during emergencies, in what courts and commentators describe as a “necessity” exception to takings.^[249] The concept that necessity makes a contextualized takings analysis inapposite has arisen in a variety of circumstances historically and continues to be invoked in contemporary cases.^[250]

One classic set of examples in the case law involves destroying property to create firebreaks during wildfires. This preventive technique was a standard response to urban conflagrations before the rise of modern fire departments going back at least to the seventeenth-century Great Fire of London (where at least some of those interventions apparently came too late^[251]), and firebreaks are still used in rural fire suppression today.^[252] Courts also have similarly long validated necessity obviating takings liability in the context of the destruction of property to prevent flooding.^[253] Public health emergencies have long been fertile ground for the necessity exception, as well.^[254] Early responses to the coronavirus pandemic saw a resurgence of this doctrine, with courts invoking public health to deny takings liability in a series of cases involving shutdowns and similar measures.^[255] Closely related are invocations of military necessity to deny compensation,^[256] an exception recognized as early as claims arising from the American Revolution.^[257] In short, emergency and necessity have had many applications throughout the history of takings law, marking a wide territory of non-takings.

b. Law Enforcement.—With similar long-standing provenance, courts have held that when property is confiscated or destroyed in the course of law enforcement investigations and operations, no compensation is owed under the federal Takings Clause or state counterparts.^[258] To cite one contemporary example, in Lech v. Jackson,^[259] police officers from the city of Greenwood Village, Colorado, cornered an armed criminal suspect in a private home, firing gas munitions, deploying “explosives to create sight lines and points of entry to the home,” and eventually using an armored vehicle to open multiple holes in the building to get at the suspect.^[260] Although the home was so damaged that the owners had to demolish and rebuild it, the Tenth Circuit categorically rejected claims for takings compensation.^[261] Courts have similarly denied takings claims where police executing search warrants seized evidence, cut up a couch, and jackhammered the floor of a garage;^[262] removed two walls of a house after a drug raid for evidentiary purposes, leaving the building structurally unsound;^[263] and even seized an oyster farmer’s harvest that had been planted in prohibited waters.^[264]

Courts rarely expound in detail as to exactly why law enforcement imperatives obviate compensation under the Takings Clause, but the jurisprudence tends to be relatively formalistic. Many courts simply draw a categorical distinction between the “police power” and the power of eminent domain;^[265] others note that property in the law enforcement context is not taken for “public use,” as though that characterization was self-explanatory.^[266]

c. National Security.—In a variety of circumstances, courts have held that national security imperatives bar compensation for what would otherwise likely be clear violations of the Takings Clause.^[267] In 767 Third Ave. Assocs. v. United States,^[268] for example, the Federal Circuit held that when sanctions against Yugoslavia caused the termination of leases in New York, the landlords, as a matter of law, could have no “investment-backed expectations” that their leases would be free of intervention by the United States, given the long history of authorization of sanctions regimes.^[269] For another, in Paradissiotis v. United States,^[270] a citizen of Cyprus claimed that the United States had committed a regulatory taking when the Treasury Department’s Office of Foreign Asset Control barred him from exercising stock options in an American company.^[271] The Federal Circuit rejected the claim, noting that it has in several instances “addressed Fifth Amendment takings claims raised by persons or entities that have been adversely affected by actions taken for national security reasons to freeze the assets of, or prohibit transactions by, foreign entities, and on each occasion we have held that the actions have not violated the Takings Clause.”^[272]

Two related rationales seem evident in the case law. In cases like 767 Third Ave. Assocs., courts make ipse dixit proclamations that national security simply trumps the Fifth Amendment. In other cases, like Paradissiotis, courts facially pitch their rationale as sounding in the ad hoc framework of Penn Central, but then categorically declare that the property interests of individual owners, workers, and businesses can never trigger takings liability when national security relations with foreign governments are at issue.

2. Alternative Legal Concerns.—In some instances, courts categorically decline to consider takings liability because alternative legal concerns are paramount or other remedies are available.

a. Taxation as Non-Takings.—An intriguing example of a categorical rule that obviates takings for what would otherwise clearly be the expropriation of a property interest is the exercise of the government’s power to tax. Intuitively, if the government literally takes as its own a thing of value from a private party—via, say, identifying a bank account and declaring the money in that account to be public funds—that would seem logically to be a taking.^[273] After all, the objects of taxation are in every other sense conventionally property that can be conveyed, inherited, mortgaged, and subject to all of the other rights associated with property. But the Takings Clause has long been held to be categorically irrelevant to this expropriation.^[274]

This might seem like a just-so observation (the state could hardly tax if doing so somehow triggered takings liability), but courts and commentators have noted that the line between taxation and expropriation that can give rise to takings is surprisingly fraught and increasingly conceptually challenging.^[275] The difficulty of identifying what, exactly, is a tax has arisen most directly in the exactions context. In Koontz v. St. Johns River Water Management District,^[276] a government official threatened to deny a land use permit unless the landowner agreed to narrow the scope of his development to protect on-site wetlands or fund improvements to protect publicly owned wetlands off-site. ^[277] The Koontz majority, as noted, expanded exactions to include monetary conditions akin to the improvement funds.^[278] It distinguished such monetary conditions from property taxes and related assessments, which it deemed outside the scope of takings review.^[279]

b. Criminal and Civil Asset Forfeiture.—A similar dynamic has emerged in two increasingly controversial areas of doctrine that categorically immunize the state against takings liability: the criminal or civil forfeiture of property used in a crime.^[280] In Bennis v. Michigan,^[281] the Supreme Court confronted a common scenario, where one party has committed a crime, and the police seize property that is co-owned by an innocent third party.^[282] Bennis involved a husband convicted of gross indecency after having sexual relations with a prostitute in a car that he owned jointly with his wife (who claimed she knew nothing of the assignation).^[283] The county prosecutor then successfully filed an abatement claim, finding that the car was a public nuisance.^[284] The wife argued before the Supreme Court that the failure to recognize an innocent-owner defense to seizure violated the Takings Clause.^[285]

The Supreme Court’s response was categorical. According to the Court, “if the forfeiture proceeding here in question did not violate the Fourteenth Amendment, the property in the automobile was transferred by virtue of that proceeding from petitioner to the State.”^[286] Echoing law enforcement cases drawing a distinction between governmental powers, the Court rationalized this sweeping ruling by arguing without elaboration that the “government may not be required to compensate an owner for property which it has already lawfully acquired under the exercise of governmental authority other than the power of eminent domain.”^[287]

c. Indian Title.—Another notable—and to be clear, normatively troubling—historical example of a property interest definitionally deemed outside the reach of takings is what the Supreme Court has called Indian title. The Court recognized this form of property as early as 1823 in the classic case of Johnson v. M’Intosh,^[288] which was nominally a dispute over the root of title but more importantly resolved structural questions about the nature of property acquired from Native American tribes.^[289] In 1955, however, in Tee-Hit-Ton Indians v. United States,^[290] a case involving native Alaskan lands, the Supreme Court declared categorically that Indian title was not protected by the Takings Clause from federal expropriation.^[291]

d. Takings Claims Foreclosed Because Concerns Addressed by Other Doctrines.—A final, somewhat eclectic set of examples bears mention briefly in this discussion of justified takings. These involve a variety of instances where courts elide takings by framing a legal dispute as more properly addressed by another source of constitutional or even common law protection.

On the constitutional side, for example, the Supreme Court noted in Lingle v. Chevron, U.S.A., Inc.,^[292] that challenges to the basic legitimacy of regulations should sound under the Due Process Clause (and, by extension, the Equal Protection Clause), rather than the Takings Clause, even though those categories were long intertwined.^[293] Similarly, in forfeiture cases, the Due Process Clause and the Eighth Amendment’s Excessive Fines Clause provide the reigning constitutional frame for review.^[294] Searches and seizures in law enforcement that involve property interests regularly raise not takings but Fourth Amendment claims.^[295] Retroactivity claims that might seem natural for takings liability are, to some extent, addressed by the constitutional bar on ex post facto laws in Article I, Section 9.^[296] And the Commerce Clause, as noted, has been invoked to deny takings compensation where the nation’s navigable servitude is at issue.^[297]

On the common law side, as the Supreme Court recently noted, there is a category of torts involving the government that fall outside the realm of takings, such as “isolated” trespasses that do not rise to the level of a physical invasion.^[298] Other kinds of negligent acts or intentional misfeasance involving property by the government similarly fall outside of takings liability but can still constitute torts.^[299]

* * *

In sum, the far-ranging distillation in this Part shows that the legal system—across a wide array of property interests and for a panoply of reasons—has repeatedly denied takings liability on categorical terms. The next Part turns to what the history and jurisprudence of per se non-takings reveal for our understanding of constitutional property protections at a moment when categorical reasoning in this area is ascending.

III. Decoupling Form and Substance in a Per Se Era

Cataloging the full breadth of per se non-takings holds several lessons for the discourse on contemporary constitutional property. First, charting the landscape greatly expands the realm of examples of categorical reasoning in takings, providing a more nuanced view of the nature and limits of formalism than what can be gleaned solely from focusing on how the Supreme Court navigates per se liability. As discussed in this Part, there are critical limitations to the operation of formalism in takings, with seemingly clear categories requiring threshold conditions to be met and even the clearest of rules necessitating at-times standards-like exceptions and qualifications. Considering liability without attending to categorical non-liability paints a radically impoverished view of the jurisprudence.

Second, a holistic mapping of per se non-takings reveals the inherent pluralism of values reflected in constitutional conflicts over property and the ways in which public imperatives can prevail even through formalist reasoning. Centering that normative pluralism, in turn, denaturalizes the reflexive tendency in the discourse on takings to couple form and substance, underscoring that per se rules can and, in many instances, do favor the state. That means that the current shift towards categorical reasoning need not uniformly yield strong property protection. While it is necessary to be clear-eyed about the valence of the Court’s methodological turn, per se thinking has the potential to displace contestation over the balance of public interests and private rights to more rule-like grounds on both sides. This Part addresses these insights in turn.

A. In the Mirror: Formalism’s Contingency Across a Unified Jurisprudence

To begin with an analytical point about the nature of formalist methodology, a holistic view of per se non-takings underscores that, as a practical matter, categorical reasoning in constitutional property tends to be more standards-like than it might at first appear. In other words, peering in depth at the mirror image of per se liability adds a rich range of examples to grapple with how challenging it is to approach takings as a formalist exercise, with rules often operating in contingent, qualified, and contextual ways.

For illustrative purposes, one can return to Loretto, which is among the most prominent of the Supreme Court’s attempts to identify situations in which new regulatory safeguards and obligations amount to per se takings. To reiterate, the holding in Loretto—as expanded in Cedar Point Nursery—set out a seemingly categorical approach to regulations that authorize the physical occupation of land by a stranger, an approach that, in the words of one commentator, applies “no matter how time limited or functionally constrained” the permitted occupation.^[300] Despite rhetoric to the contrary, ^[301] though, this attempt at categorization in practice reveals aspects that may be better thought of as applications of the Penn Central considerations in cases in which one consideration—the character of the government action with Loretto and Cedar Point Nursery^[302]—weighs so intensely in favor of the claimant that the other considerations may be largely irrelevant to the analysis.^[303]

Indeed, upon close inspection, there is little that is actually fully categorical about this supposedly categorical approach. Numerous cases indicate that the importance of the public interest furthered by the regulation at issue often matters in applying Loretto and Cedar Point Nursery. For an obvious example, public accommodations laws establish a physical public access easement that is now universally considered justified without the provision of compensation.^[304] Indeed, Cedar Point Nursery is itself riddled with explicit (as well as implicit) exceptions.^[305] Reflecting a range of values, these exceptions are grounded in doctrines surrounding civil rights, trespass and owner consent, licensing regimes, and myriad others.^[306] All of these carveouts have their own unique history and their own normative force. For present purposes, though, they collectively underscore that the Supreme Court’s simplistic declaration that all “expropriations” of the right to exclude give rise to a compensation mandate rings hollow when faced with the complex nuances of public imperatives.

Per se non-takings doctrines exhibit many of the same characteristics. That is, in practice, rules that ostensibly delineate categorical non-liability are less rigid than might first appear, even if the starting point of a rule versus a standard remains important. This contingency manifests in a number of ways. First, while there may be many a simple case in which it is obvious that a non-takings rule operates, in complex cases the rule’s application inevitably requires judgment to determine whether it should apply. In exercising judgment, decision-makers must consider the reasons why the rule was adopted in the first instance to determine whether those reasons are convincing in this context or, instead, whether other reasons—competing norms and values—counsel otherwise. In resorting to what Joseph Singer has deemed “rules of reason,” standards inexorably come into play.^[307]

The Supreme Court’s decision in Nollan v. California Coastal Commission exemplifies this complication in the context of the public trust doctrine.^[308] While Nollan is not framed explicitly in public trust terms, the opinion implicates the doctrine, and Justice Brennan’s dissent remarks on it specifically.^[309] As noted above, courts routinely recognize the public trust doctrine—which protects public access to and use of tidal and navigable waterways—as a background principle of reserved public ownership that categorically immunizes the state from takings liability.^[310] The Justices’ ire in Nollan may well not have been provoked had the California legislature or a California court endorsed a generally applicable beach access policy grounded in public trust principles. Indeed, the Court had denied a petition for certiorari just three years prior when, in Matthews v. Bay Head, the New Jersey Supreme Court had famously held that, where a “quasi-public” entity owned or leased a significant segment of a municipality’s oceanfront, the “[public trust] doctrine warrants the public’s use of the upland dry sand area[.]”^[311] In Nollan, though, the Court expressed alarm at the individualized nature of the state’s demand, where the required lateral accessway in front of the Nollan’s home likely would have sat isolated for some time (if not in perpetuity) in light of the fact that oceanfront lands in front of the homes of Nollan’s immediate neighbors were not—at least not yet—so conditioned.^[312]

On this interpretation, the Nollan Court reached the implicit conclusion that applying the per se non-taking rule undergirding the public trust doctrine would allow the state to engage in the morally corrupt practice of extorting land from a private owner that the public may never have considered using.^[313] Seeing this result as unfortunate, the Court effectively distinguished the targeted circumstances at play in Nollan from the type of jurisdiction-wide relevance of beach access in cases like Matthews. On this reading of Nollan, the Justices did what judges are tasked with doing—they exercised judgment to determine the legitimate scope of a non-takings rule in a case in which that rule’s applicability was not self-evident.^[314]

Second, even where it is obvious that a non-takings rule should apply to a particular circumstance, there are occasions where courts nonetheless provide compensation as a form of transition relief for certain parties. Consider, for example, a handful of cases in which courts have declined to dismiss takings challenges to wildlife regulations, despite the incidents of the public’s ownership of wildlife that would seemingly justify such environmental protections. In Casitas Municipal Water District v. United States^[315] and Baley v. United States,^[316] for example, federal courts declined to summarily dismiss takings challenges to regulations requiring the claimants to leave instream water previously allocated for delivery in an effort to allow endangered fish to migrate.^[317] These courts understood that the species at issue may well have gone extinct without the water remaining instream.^[318] While they did not explicitly recognize extinction of these species as intrusive on the public’s ownership of wildlife, the decisions could be understood to assume as much. Wary, though, of the special impact this turn could have on the specific water users whose allocations would be depleted, Casitas and Baley effectively created an exception to the public’s ownership of wildlife by leaving open the possibility that the wildlife restriction at trial could be conceived as physically appropriating vested water rights. On this interpretation, an ostensibly per se non-liability rule clashed with an ostensibly per se liability rule, to which by definition there is no categorical resolution.

Third, there are instances where the mechanical application of a non-takings rule would allow the state to engage in an act that brushes up so close to that rule’s boundary that it imposes the very type of harm the rule was designed to protect against. That is, pace Duncan Kennedy, mechanical application in these cases would allow “bad [people] to walk the line” with the comfort of knowing that there will be no legal consequence for their conduct.^[319] Contextualizing in such cases, rather than rigidly categorizing, can prompt government actors to consider seriously the effects of their conduct on others’ well-being.^[320]

One can read Kaiser Aetna v. United States as a suitable illustration. In that case, as noted,^[321] a private developer sought permission from the Army Corps of Engineers to dredge a channel to connect a privately owned water body to the world’s largest publicly owned one: the Pacific Ocean.^[322] This dredging project would have subjected the private water body to the ocean’s tidal influences and, given its depth, would have made it navigable. Accordingly, the privately owned water body would—once connected to the Pacific—have been subject to the federal navigational servitude and likely deemed open to public use for navigational purposes. After all, as noted earlier, the Supreme Court held a century ago in Scranton v. Wheeler that “in every grant of lands bounded by navigable waters where the tide ebbs and flows . . . there is reserved by implication the right to so improve the water front as to aid navigation for the benefit of the general public, without compensation to the riparian owner.”^[323] Yet, the Kaiser Aetna Court found a compensable taking on the ground that the development company had reasonably relied to its financial detriment on Army Corps officials’ representations that the private water body would remain private following dredging.^[324] On this reading, the Court sought to promote better, more morally grounded decision-making on the government’s part by injecting some fuzziness into the navigational servitude’s application.

These examples may be at the outer margins of the doctrine in rejecting per se non-takings rules to find compensable takings; there are other examples that apply a contextualized analysis when a per se non-takings rule would seem to apply but do not ultimately find takings liability.^[325] This discussion, though, is offered to make the general point that widening the net of categorical rules in takings law to include non-takings rules better positions us to understand that the fact that cases like Lucas, Loretto, and Cedar Point Nursery are less rule-like in practice than they appear is not an idiosyncratic bug but, rather, a feature of almost any conceivable rule-oriented takings framework. Just like facially categorical liability rules, facially categorical non-liability rules do not determine the scope of their own application.^[326] Yes, categorical takings rules—for liability and non-liability alike—are easy to apply in easy cases. But standards are necessary to interpret these rules and determine their relevance to given sets of facts when hard cases inevitably come along.^[327]

In hard cases, this interpretive and determinative exercise requires wrestling with the rationale behind the formation of the rule, the values that the rule supposedly endeavored to protect, the benefits it sought to advance, and the circumstances under which it was supposed to operate, as well as any countervailing values and interests that might not have been implicated or obvious under the circumstances that led to the rule’s adoption in the first place.^[328] A rule dissolves when judges cannot live with the result that the mechanical application of that rule dictates under new factual conditions.^[329] In short, looking at per se liability in light of per se non-liability underscores the practical jurisprudential challenge of categorical reasoning, suggesting that the emergent formalist moment may continue to be more complicated than its adherents let on.

B. Normative Pluralism and the Form-Substance Linkage in Takings

Examining the panoply of per se non-takings sheds light not only on the inherent contingency of categorical reasoning in takings but also reveals the breadth of justifications underlying the jurisprudence. Across the pluralism of reasons that undergird the legal system’s categorical rejections of the compensation mandate, some rationales are normatively attractive and some distinctly troubling. Regardless, that pluralism matters because it shows how wide a range of concerns and how many strong state interests are embedded in even the most seemingly formalist—rule-like—approach to takings.^[330] Recognizing this connection between normative pluralism and methodological formalism provides a counterpoint to the supposition in the discourse that rules lead to strong property rights while standards privilege the state. In other words, as this section unpacks, embracing rules in takings in no way displaces the rich normativity conventionally thought to be the province of standards.

1. The Intriguing Normative Pluralism of Per Se Non-Takings.—Categorical exceptions to takings liability evince a surprisingly broad normative variety of justifications at play.^[331] The nuisance exception, for example, reflects the fundamental good-neighbor principle that owners may not use their property to harm others—sic utere tuo ut alienum non laedes, as many first-year property professors drill home. This norm of reciprocity and mutual respect arguably also underwrites aspects of the necessity exception and the corresponding burdens that owners must accept—including the outright destruction of their property—in the face of certain exigencies.

Another set of justifications for non-liability highlights the importance of access rights to vindicate public values. This can be seen in exceptions for the public trust and cemetery access, as well as the entire edifice of civil rights protections for those seeking to access property in the sphere of commerce.^[332] In all of these and similar contexts, the legal system has recognized the right to enter as paramount, whether because of norms of equal opportunity to participate in the market, to engage in recreational pursuits, or even to visit loved ones in their place of final rest.

A distinct set of exceptions to takings liability centers the reality of practical governance, particularly in moments of crisis. This is one way of understanding the long history of the emergency exception in the face of conflagration, public health crises, and military engagements.^[333] These exceptions appear to rest on a basic utilitarian instinct that it is justified to allow the uncompensated destruction of some narrow set of properties to preserve a much larger swath of property, or to preserve life over property.^[334] Normatively, it may also be the best way to explain the range of cases that subordinate property rights to the needs of law enforcement, national security, and punishment through forfeiture (again, whatever one might think of the valence of those justifications). As Brian Lee has cataloged, arguments for necessity tend to invoke “incentives for socially efficient” decision making on the government’s part or point to either the inevitability of destruction or the emergency itself as the source of harm, rather than the state.^[335]

And at moments of fundamental shifts in property norms—and even in some smaller-scale analogues—overriding imperatives ensure that compensation does not stand as a bar. This kind of tectonic adjustment may be morally incontrovertible, as with the end of the ownership of human beings or the relative gender egalitarianism of the Married Women’s Property Acts,^[336] or, more normatively troubling, as with the nullification of Indian title.^[337] But the absence of a compensation mandate at junctures marked by structural changes in the system of property provide a vehicle for a variety of fundamental values to mark the boundaries of constitutional protection.^[338]

Given the normative pluralism of per se non-takings, it might be tempting to distinguish them from per se takings on the ground that the latter involves ipse dixit resort to conceptual references (such as an inveterate “right to exclude”), while the former requires reason-giving and justification. But that would elide the fact that the Supreme Court has a normative view in articulating categorical liability, even if the surface reasoning seems mostly to sound in the register of abstract formalism. In Lucas, for example, there was little doubt that the majority valorized the economic potential of ownership and evinced blatant skepticism about the regulatory enterprise, even for goals as seemingly non-controversial as ecosystem preservation.^[339] Similarly, in Cedar Point Nursery, while the nominal holding extolled the seeming bright-line clarity of the right to exclude,^[340] the dizzying array of exceptions and qualifications the Court was required to acknowledge implicitly recognized the contingency of that right and the instrumental underpinnings of the Court’s approach in a case involving unionization efforts. All to say, whether courts are transparent on this score, applications of per se takings rules and non-takings rules alike require reasoned judgment.

2. Decoupling Form and Substance in Takings.—This analysis brings us back, finally, to the linkage between form and substance in takings.^[341] The inherent normative pluralism of per se non-takings provides a strong argument for decoupling the presumed relationship between rules and the strength of constitutional protection for property rights. Simply put, the fact that the legal system in an array of contexts privileges public interests over private rights in more or less categorical terms means that the relationship between methodology and outcome in takings is inherently contingent. This is not to say that a rules-centered jurisprudence will not tend to favor compensation claimants in the main, as it is developing—only that it need not and that, in the history and tradition of takings, has very much not done so.

This contingency, moreover, underscores that rules and standards are not as distinct as they appear in conventional accounts of the jurisprudence.^[342] This is not to suggest that choices between formalist and contextual starting points are meaningless. Rather, the point is that the current moment of rule ascendancy in takings does not, at least inevitably, spell doom for the types of regulatory obligations and safeguards that Duncan Kennedy’s “altruists” generally support. Crafting and applying non-takings rules, it turns out, requires the same types of normative judgments that underpin the crafting and application of standards. Understanding that non-liability can comfortably exist within categorical reasoning suggests that the shift toward further categorization by the contemporary Supreme Court may merely displace contestation over the balance between property protection and public values into a new arena.

Indeed, a hydraulic displacement of normative debate from rules versus standards to arguments more clearly situated entirely within a rules-based jurisprudence may be an emergent feature of the contemporary shift. Framing takings in increasingly all-or-nothing terms, built around seemingly absolute definitions, may push traditional debates about values and the balance between public and private interests in takings law into arguments about broad exemptions. Whether that undermines any benefits for rules in terms of certainty, clarity, administrability, and the like is relevant, to be sure, but not the primary point. Rather, assuming that the Supreme Court will increasingly bring takings law into a rule-like environment likely means that the same debates that have always played out in constitutional property will tend to be framed as rules across the board. Indeed, if the current Court rejects standards entirely—which is not hard to contemplate, given the hostility of the current majority to Penn Central^[343]—formalism ultimately and ironically could end up underwriting arguments for rejecting regulatory takings altogether.^[344]

In short, the normative force and variety of the justifications underpinning the array of categorical denials of takings liability suggest that methodological conflicts—with rules underwriting determinative property rights and standards supporting the relative primacy of public imperatives—must be denaturalized. Even in a world of categorical reasoning, the wide array of public considerations that have led our legal system to eschew takings will continue to have force, even if they may be expressed in categorical terms.

Conclusion

Since the Supreme Court launched the modern era of takings jurisprudence, internecine disputes over analytical reasoning have formed a kind of constitutional property proxy war. In this form-substance contestation, classical liberal conceptions of property have been underwritten by per se methodology, and the contemporary Court is increasingly rejecting ad hoc standards as antithetical to what they see as the protection afforded to private owners by the Takings Clause.

As this Article has demonstrated, however, formalist reasoning has never been limited to findings of takings liability. The legal system has long denied compensation in essentially categorical terms across a wide array of contexts, reflecting a range of normative and practical concerns. Appreciating the provenance, endurance, and complexity of these per se non-takings provides novel grounds on which to recognize that even in an era of resurgent rules-based jurisprudence, debates about the balance between private rights and public imperatives in constitutional property will—indeed, must—continue. In that emerging jurisprudential world, per se non-takings could offer a counterweight to narrowing constructions of the balance between private rights and public imperatives. Whether this underappreciated, fundamental aspect of takings law actually does so remains, of course, to be seen.

1. . The literature on this methodological fault line is wide-ranging. For example, see Joseph William Singer, The Rule of Reason in Property Law, 46 U.C. Davis L. Rev. 1369, 1375 (2013) [hereinafter Singer, Rule of Reason]; John Lovett, Love, Loyalty and the Louisiana Civil Code: Rules, Standards and Hybrid Discretion in a Mixed Jurisdiction, 72 La. L. Rev. 923, 937–41 (2012); Amnon Lehavi, The Dynamic Law of Property: Theorizing the Role of Legal Standards, 42 Rutgers L.J. 81, 111–14 (2010); Henry E. Smith, Community and Custom in Property, 10 Theoretical Inquiries in Law 5, 34 n.109, 36–37 (2009); Stewart E. Sterk, Property Rules, Liability Rules, and Uncertainty About Property Rights, 106 Mich. L. Rev. 1285, 1319, 1330–31, 1333 (2008); Carol M. Rose, Crystals and Mud in Property Law, 40 Stan. L. Rev. 577, 578, 580 (1988); Susan Rose-Ackerman, Against Ad Hocery: A Comment on Michelman, 88 Colum. L. Rev. 1697, 1699–700 (1988); and Frank Michelman, A Reply to Susan Rose-Ackerman, 88 Colum. L. Rev. 1712, 1712 (1988). ↑
2. . This Article associates categorical reasoning in takings with a certain vein of doctrinal formalism that ostensibly involves more-or-less bright-line rules, a common phenomenon in constitutional jurisprudence more generally. See James G. Wilson, The Morality of Formalism, 33 UCLA L. Rev. 431, 434–35 (1985) (noting the ubiquity with which courts “creat[e] fixed rules based upon a limited set of facts” in constitutional adjudication). For purposes of this Article, we will use the terms “categorical,” “rule-based,” and “formalist” reasoning interchangeably. This course is not to suggest that all of the elements attributed to formalism—and all of formalism’s alleged conceptual antecedents—map perfectly onto the reasoning we describe in takings, but, rather, that it is not necessary for the purposes advanced here to press the point at that level of granularity. ↑
3. . 438 U.S. 104 (1978).

   ↑

4. . Cf. Duncan Kennedy, Form and Substance in Private Law Adjudication, 89 Harv. L. Rev. 1685, 1702 (1976) (analyzing the question in private law generally). ↑
5. . See, e.g., Horne v. Dep’t of Agric., 576 U.S. 351, 357, 362–65 (2015) (holding that the Takings Clause applies categorically to physical seizures of personal property); Cedar Point Nursery v. Hassid, 141 S. Ct. 2063, 2072 (2021) (holding that a per se taking has occurred “[w]henever a regulation results in a physical appropriation of property”). For discussion of methodological shifts between rules and standards in takings and the Court’s current turn toward per se reasoning, see infra subpart I(A).

   The movement away from standards towards rules in takings is of a piece with a broader constitutional jurisprudential shift currently underway across free speech, free exercise, the Second Amendment, equal protection, jury trial rights, and the interpretation of Congress’s civil rights enforcement and commerce powers, among other areas. For a recent survey of this ongoing sea change, see generally Francesca Procaccini, The End of Means-End Scrutiny, 75 Duke L.J. (forthcoming 2025). ↑

6. . This is not an entirely novel observation, to be sure, for select literature has noted elements of the phenomenon. David Dana and Thomas Merrill, for example, briefly delineated categories “where compensation is never required” for a taking, including what they describe as “the nuisance exception, the forfeiture rule, the navigation servitude, and the conflagration rule.” David A. Dana & Thomas W. Merrill, Property: Takings 110 (2002). Shelley Ross Saxer similarly recently argued that there is a “general police power exception” to takings that “distinguishes regulatory power from the eminent domain power.” Shelley Ross Saxer, Necessity Exceptions to Takings, 44 U. Haw. L. Rev. 60, 65 (2022). David Callies has cataloged cases involving the nuisance exception to takings and related categories within what he groups as “background principles exceptions,” including public trust, custom, and certain statutes. See generally David Callies, Regulatory Takings After Knick: Total Takings, the Nuisance Exception, and Background Principles Exceptions (2020). And one category in the visual taxonomy that Lee Anne Fennell laid out to explain takings as a whole was what she called “confiscatory nontakings,” which she described as “a few categories of governmental acts that will never constitute takings in the constitutional sense, even when they involve the outright appropriation or destruction of private property.” Lee Anne Fennell, Picturing Takings, 88 Notre Dame L. Rev. 57, 67–71 (2012).

   This Article, however, greatly expands the doctrinal landscape to a variety of other examples, see infra Part II, and offers a new theoretical framework through which to understand the implications of this under-explored jurisprudential realm for contemporary debates about constitutional methodology in the takings context, see infra Part III. ↑

7. . Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1029 (1992). For general treatment of excluding takings liability through background principles, see Timothy M. Mulvaney, Reconceptualizing “Background Principles” in Takings Law, 109 Minn. L. Rev. 689 (2024) [hereinafter Mulvaney, Background Principles], and David A. Dana, “Background Principles” in the Law of Takings, 73 Am. U. L. Rev. 1789 (2024). As noted below in note 248, there is a way in which all examples of per se non-takings could be understood to encompass background principles, but there is value in disaggregating the logic underlying instances in which courts invoke that concept and instances in which some other theory of categorical non-liability pertains. ↑
8. . See infra subpart II(A)(1). As explored below, “background principles” that obviate takings are not limited to common law doctrines but also include certain statutory limitations on property rights that in some still-indeterminate way come to “inhere in title.” ↑
9. . See infra subpart II(A)(2). ↑
10. . See Carol M. Rose, Property and Expropriation: Themes and Variations in American Law, 2000 Utah L. Rev. 1, 24–25 (2000) (discussing the “revolutionary expropriations” without compensation attendant to emancipation); cf. Margaret Jane Radin, Market-Inalienability, 100 Harv. L. Rev. 1849, 1856 (1987) (noting “deeply contested issues of commodification,” including those surrounding the salability of infants, blood, and human organs). ↑
11. . See infra subpart II(A)(3). To be clear, examples of early transitions in the development of American property law discussed below do not map easily onto the contemporary conceptual framework of takings, which developed over the course of the twentieth century at a time of broader shifts in constitutional theory and jurisprudence. But at the appropriate level of generality, changes in the structure of property law that could have—but did not—generate compensation even in pre-modern terms bear mention in a taxonomy of categorical denials of takings liability. ↑
12. . See infra subsection II(B)(1)(a). ↑
13. . See infra subsections II(B)(1)(b), (c). ↑
14. . See infra section II(B)(2); cf. Thomas W. Merrill, The Landscape of Constitutional Property, 86 Va. L. Rev. 885, 955–56 (2000) (noting that the recognition of property interests can vary from constitutional provision to constitutional provision). ↑
15. . Courts have denied takings liability because they have found a given harm to or interference with property better addressed by some other constitutional provision, such as the Due Process Clause or the Eighth Amendment, as well as even common law remedies, such as tort law. See infra section II(B)(2). ↑
16. . The Court has explicitly claimed to be creating per se rules in a few notable cases, including Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1014 (1992) and Cedar Point Nursery v. Hassid, 141 S. Ct. 2063, 2071–72 (2021). The Court, however, has deployed categorical reasoning in a broader array of cases. See infra subpart I(A). Regardless of labeling, considering the range of per se non-takings vastly expands the universe of doctrinal examples to explore.

    It is certainly fair to note that even when the Court claims to create a per se category, qualifications and threshold conditions inevitably arise. As subpart III(A) below explains, many examples of per se non-takings have a similar logical structure. To that extent, non-liability is not always per se in the way that term might ordinarily seem to mean, but it parallels the contingency of its per se liability counterpart in that regard. ↑

17. . See infra subpart II(A). ↑
18. . Indeed, it is entirely plausible that the current Supreme Court could in the near future reject the standards-based approach set out in Penn Cent. Transp. Co. v. New York City, 438 U.S. 104, 124 (1978). After all, a Court that in recent years has overturned landmark cases from the same era as Penn Central—such as Roe v. Wade, 410 U.S. 113 (1973), overturned by Dobbs v. Jackson Women’s Health Organization, 142 S. Ct. 2228, 2242 (2022), and Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837 (1984), overturned by Loper Bright Enterprises v. Raimondo, 144 S. Ct. 2244, 2273 (2024), and others—would hardly seem deterred by Penn Central’s longstanding iconic status in takings law. ↑
19. . See infra subpart III(B). ↑
20. . We have weighed in on this balance in previous work. E.g., Timothy M. Mulvaney, Walling Out: Rules and Standards in the Beach Access Context, 94 S. Cal. L. Rev. 1, 22–23, 31–32 (2020) [hereinafter Mulvaney, Walling Out]; Nestor M. Davidson & Timothy M. Mulvaney, Takings Localism, 121 Colum. L. Rev. 215, 226 n.42 (2021). ↑
21. . Penn Central, 438 U.S. at 124. ↑
22. . Cedar Point Nursery v. Hassid, 141 S. Ct. 2063, 2071 (2021). ↑
23. . See infra subpart I(B). ↑
24.  The federal Takings Clause provides “nor shall private property be taken for public use without just compensation.” U.S. Const. amend. V. ↑
25. . E.g., William Michael Treanor, The Original Understanding of the Takings Clause and the Political Process, 95 Colum. L. Rev. 782, 783 (1995); Cynthia Estlund, Showdown at Cedar Point: “Sole and Despotic Dominion” Gains Ground, 2021 Sup. Ct. Rev. 125, 126 (2021). Indeed, the Supreme Court itself declared that, for the first 150 years of our nation’s history, “it was generally thought that the Takings Clause reached only a ‘direct appropriation’ of property, or the functional equivalent of a ‘practical ouster of [the owner’s] possession.’” Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1014 (1992) (citations omitted). ↑
26. . 260 U.S. 393 (1922). Writing on Mahon’s historical role in the development of takings law is vast. For some particularly prominent works in this regard, see generally Bruce Ackerman, Private Property and the Constitution (1977); Carol M. Rose, Mahon Reconstructed: Why the Takings Issue Is Still a Muddle, 57 S. Cal. L. Rev. 561 (1984); Richard A. Epstein, Takings: Descent and Resurrection, 1987 Sup. Ct. Rev. 1; William Michael Treanor, Jam for Justice Holmes: Reassessing the Significance of Mahon, 86 Geo. L.J. 813 (1998). ↑
27. . Mahon, 260 U.S. at 415. ↑
28. . Id. at 413 (emphasizing the “extent of the diminution”). ↑
29. . The classic telling of this account appears in Joseph L. Sax, Takings and the Police Power, 74 Yale L.J. 36, 50 (1964). ↑
30. . See Mahon, 260 U.S. at 422 (Brandeis, J., dissenting) (“The conclusion seems to rest upon the assumption that in order to justify such exercise of the police power there must be ‘an average reciprocity of advantage’ as between the owner of the property restricted and the rest of the community . . . .”). On a strict interpretation of the principle of reciprocity, no property owner can, on net, bear a non-trivial diminution in one’s property value at the hands of government regulation without compensation. See, e.g., Hanoch Dagan, Takings and Distributive Justice, 85 Va. L. Rev. 741, 782–83 (1999) (noting that if the threshold for the diminution-of-value test is set too low, then “each loss, excepting a de minimis one, is compensated”). ↑
31. . See Mahon, 260 U.S. at 416 (“So far as private persons or communities have seen fit to take the risk of acquiring only surface rights, we cannot see that the fact that their risk has become a danger warrants the giving to them greater rights than they bought.”). ↑
32. . 364 U.S. 40 (1960). ↑
33. . Frank Michelman, Takings, 1987, 88 Colum. L. Rev. 1600, 1621 (1988) (noting the Court’s move “toward a highly nonformal, open-ended, multi-factor balancing method” after Mahon). ↑
34. . Armstrong, 364 U.S. at 41. ↑
35. . Id. ↑
36. . Id. ↑
37. . Id. at 48–49. ↑
38. . Id. at 49. ↑
39. . Sax, supra note 29, at 57 (emphasis added). The Supreme Court had set the table for Sax’s assertion, noting in a 1962 decision that while “a comparison of values before and after is relevant” to the takings inquiry, it is “by no means conclusive.” Goldblatt v. Town of Hempstead, 369 U.S. 590, 594 (1962) (emphasis added). ↑
40. . Sax, supra note 29, at 61. ↑
41. . See id. at 61, 64 (asking “to what kind of competition ought existing values be exposed; and, from what kind of competition ought existing values be protected”) (emphasis added). ↑
42. . See Margaret Jane Radin, The Liberal Conception of Property: Cross Currents in the Jurisprudence of Takings, 88 Colum. L. Rev. 1667, 1684 (1988) (contending that the approach set out in Penn Central was “created under the salutary influence of Frank Michelman’s famous article,” Property, Utility, and Fairness: Comments on the Ethical Foundations of “Just Compensation” Law, 80 Harv. L. Rev. 1165 (1967)); Gregory M. Stein, The Effect of Palazzolo v. Rhode Island on the Role of Reasonable Investment-Backed Expectations, in Taking Sides on Takings Issues: Public and Private Perspectives 41, 42 (Thomas E. Roberts ed., 2002) (noting that Penn Central “relied heavily on Professor Frank Michelman’s influential 1967 essay”); Lynda J. Oswald, Cornering the Quark: Investment-Backed Expectations and Economically Viable Uses in Takings Analysis, 70 Wash. L. Rev. 91, 104 (1995) (“Michelman’s analysis clearly influenced Justice Brennan as he wrote the majority opinion in Penn Central.”).

    Penn Central was not the Court’s first turn to Professors Sax and Michelman in the takings arena. In 1969, the Court pointed to their work as offering a worthy “general discussion of the purposes” of the Takings Clause. Nat’l Bd. of Young Men’s Christian Ass’ns v. United States, 395 U.S. 85, 90 n.2 (1969). Various Justices would proceed to draw on and cite Professor Sax’s and Professor Michelman’s perspectives not only in Penn Central but in several of the Court’s other important twentieth-century takings decisions. See Timothy M. Mulvaney, Non-Enforcement Takings, 59 B.C. L. Rev. 145, 151 n.22 (2018) (listing examples). ↑

43. . Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104, 128 (1978). ↑
44. . Id. at 124. Initially, the Court described the requisite expectations as needing to be sufficiently “distinct” but later shifted to evaluating whether such expectations were “reasonable.” Daniel R. Mandelker, Investment-Backed Expectations: Is There a Taking?, 31 Wash. U. J. Urb. & Contemp. L. 3, 14 (1987). ↑
45. . See, e.g., Comment, Adequate Protection and the Automatic Stay Under the Bankruptcy Code: Easing Restraints on Debtor Reorganization, 131 U. Pa. L. Rev. 423, 450 (1982) (suggesting that, according to Sax, “the government’s denial of the use of property to one competing claimant in favor of another should generally be considered a ‘non-compensable exercise of the police power’ rather than a taking” (quoting Sax, supra note 29, at 63)). ↑
46. . Indeed, Michelman himself would later explicitly describe the jurisprudence as concluding as much. See Frank Michelman, Takings, 1987, 88 Colum. L. Rev. 1600, 1621 (1988) (“In all the years between 1922 and 1987, however, the Court never once clearly applied the open-ended balancing test in favor of a takings claim and against a regulating government.”). ↑
47. . Penn Central, 438 U.S. at 146 (Rehnquist, J., dissenting) (quoting United States v. Dickinson, 331 U.S. 745, 748 (1947)). ↑
48. . 444 U.S. 164 (1979). ↑
49. . Id. at 167, 179–80. ↑
50. . Id. at 174–75. ↑
51. . Id. at 179–80. ↑
52. . Id. Certain “expectancies,” in the Court’s view, are “embodied in the concept of ‘property,’” and, where “sufficiently important,” cannot be restricted absent compensation. Id. at 179.

    ↑

53. . 458 U.S. 419 (1982). ↑
54. . Id. at 432, 441 (deeming “permanent physical occupation[s] . . . taking[s] without regard to other factors that a court might ordinarily examine”). ↑
55. . Id. at 430. ↑
56. . See, e.g., Casella v. City of Morgan Hill, 230 Cal. App. 3d 43, 52 (Cal. Ct. App. 1991) (“Loretto upheld the ‘traditional rule’ distinguishing physical occupation cases—which are takings per se—from regulatory takings, in which a court must analyze whether ‘the action achieves an important public benefit . . . .’”). ↑
57. . 483 U.S. 825 (1987). ↑
58. . Id. at 832. ↑
59. . See generally Antonin Scalia, The Rule of Law as a Law of Rules, 56 U. Chi. L. Rev. 1175 (1989). ↑
60. . Nollan, 483 U.S. at 832 (emphasis added). ↑
61. . 512 U.S. 374 (1994). ↑
62. . Id. at 384. ↑
63. . James E. Holloway & Donald C. Guy, Land Dedication Conditions and Beyond the Essential Nexus: Determining “Reasonably Related” Impacts of Real Estate Development Under the Takings Clause, 27 Tex. Tech L. Rev. 73, 94–101 (1996) (describing the Nollan/Dolan inquiry). For decades, Nollan and Dolan were generally understood in most jurisdictions to limit Loretto’s per se rule to situations in which administrators conditioned permits on the requirement that landowners dedicate a portion of their properties to public use. As discussed below, see infra notes 112–13, the Court concluded in its 2024 opinion in Sheetz v. El Dorado County that Nollan/Dolan scrutiny applies to at least some permit conditions that are imposed via legislation. Sheetz v. El Dorado County, 601 U.S. 267, 270 (2024). ↑
64. . Richard A. Epstein, Takings: Private Property and the Power of Eminent Domain 116 (1985); see also Douglas T. Kendall & Charles P. Lord, The Takings Project: A Critical Analysis and Assessment of the Progress So Far, 25 B.C. Env’t Aff. L. Rev. 509, 510 (1998) (arguing that “many of the changes in takings law that have taken place over the last 11 years correspond quite closely to a blueprint for takings doctrine proposed by Professor Richard Epstein in his now-famous book[.]”).

    ↑

65. . Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1015 (1992) (internal quotation marks omitted).

    ↑

66. . Babbitt v. Youpee, 519 U.S. 234 (1997). ↑
67. . See id. at 243–44; see also Hodel v. Irving, 481 U.S. 704, 716 (1987) (declaring that disposition at death is of traditional importance akin to the right to exclude and thus cannot be abrogated absent compensation). ↑
68. . 524 U.S. 156 (1998). ↑
69. . Id. at 160–62; see also id. at 168 (noting that “petitioners point to no ‘background principles’ of property law . . . that would lead one to the conclusion that the owner of a fund temporarily deposited in an attorney trust account may be deprived of the interest the fund generates”). ↑
70. . 533 U.S. 606 (2001). ↑
71. . 535 U.S. 302 (2002). ↑
72. . 544 U.S. 528 (2005). ↑
73. . Palazzolo, 533 U.S. at 627, 630. On remand, a Rhode Island trial court judge rejected the landowner’s regulatory takings claim on the grounds that it was unreasonable under the circumstances for one to expect to be able to fill and develop a saltwater pond and the adjacent marshlands. Palazzolo v. State, No. WM 88-0297, 2005 WL 1645974, at *14 (R.I. Super. Ct. July 5, 2005). ↑
74. . Palazzolo, 533 U.S. at 633–34 (O’Connor, J., concurring). ↑
75. . Id. at 636 (O’Connor, J., concurring). Justice Scalia, meanwhile, continued to insist that takings analyses concentrate rigidly on what within the claimant owner’s borders has been lost; on his view, the fact that a claimant may have acquired property after the enactment of the challenged restriction is, like the purposes and effects of the restriction, not relevant at all. Id. at 637 (Scalia, J., concurring).

    ↑

76. . Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 535 U.S. 302, 320–21 (2002).

    ↑

77. . Id. at 326–27 n.23 (emphasis added) (quoting Palazzolo v. Rhode Island, 533 U.S. 606, 636 (2001) (O’Connor, J., concurring)); id. at 334. ↑
78. . Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 538–39 (2005) (asserting that the considerations highlighted in Penn Central “have served as the principal guidelines for resolving regulatory takings claims that do not fall within the physical takings or Lucas rules”). ↑
79. . Id. at 538 (quoting Penn Cent. Transp. Co. v. New York City, 438 U.S. 104, 124 (1978)).

    ↑

80. . See, e.g., Mark Fenster, Takings Formalism and Regulatory Formulas: Exactions and the Consequences of Clarity, 92 Cal. L. Rev. 609, 621 (2004) (asserting in 2004 that, “[f]ollowing Tahoe-Sierra, the Court is not likely to impose rule formalism on all regulatory takings claims or increase the number of categorical takings in the near future”). ↑
81. . For instance, a unanimous Court in 2012’s Arkansas Game declined to adopt a categorical rule deeming state-induced temporary flooding an automatic taking. See Ark. Game & Fish Comm’n v. United States, 568 U.S. 23, 34 (2012) (stating “government-induced flooding of limited duration may be compensable” (emphasis added)). The Court instead held that such takings disputes must be the subject of “case-specific factual inquiry” regarding the duration and severity of the flooding, the state’s intent, the foreseeability of the result, the causal relationship between the state’s decision and the alleged injury, and the “character of the land at issue.” Id. at 38–39. ↑
82. . 560 U.S. 702 (2010). ↑
83. . Nominations and Appointments to Federal Office, George W. Bush Presidential Libr., https://www.georgewbushlibrary.gov/research/topic-guides/nominations-and-appointments-federal-office [https://perma.cc/P5DJ-YEEX]. ↑
84. . Stop the Beach Renourishment, 560 U.S. at 715 (plurality opinion). ↑
85. . See Joseph William Singer, Justifying Regulatory Takings, 41 Ohio N.U. L. Rev. 601, 611 (2023) (suggesting that “when the Justices talk about protecting ‘established rights of private property,’ they mean to protect property rights that deserve protection”) (emphasis in original). ↑
86. . See John D. Echeverria, Stop the Beach Renourishment: Why the Judiciary Is Different, 35 Vt. L. Rev. 475, 477–81 (2010) (“[T]he plurality opinion can be viewed as Justice Scalia’s effort to regain ground he may believe he lost in [Tahoe-Sierra], in which the Court, with Justice Scalia in dissent, affirmed the primacy of the Penn Central analysis and narrowly cabined the per se takings tests.”). ↑
87. . Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1034 (1992) (Kennedy, J., concurring in the judgment). ↑
88. . Stop the Beach Renourishment, 560 U.S. at 733–34 (Kennedy, J., concurring in part) (noting “certain difficulties that should be considered before accepting the theory that a judicial decision that eliminates an ‘established property right’ constitutes a violation of the Takings Clause” (internal citation omitted)). Justice Kennedy suggested that, perhaps, judicial elimination of “established” property interests could be construed as a violation of the Due Process Clause. Id. at 735. ↑
89. . 570 U.S. 595 (2013). ↑
90. . See supra notes 60–62 and accompanying text. ↑
91. . Koontz, 570 U.S. at 602. ↑
92. . See infra subsection II(B)(2)(a). ↑
93. . Koontz, 570 U.S. at 614 (“The fulcrum this case turns on is the direct link between the government’s demand and a specific parcel of real property.”). ↑
94. . Id. at 613–14 (quoting Eastern Enterprises v. Apfel, 524 U.S. 498, 540 (1998)). If the mere existence of a linkage between a monetary demand and a specific parcel of real property makes such a demand a per se taking, Nollan and Dolan’s inquiry into the particulars of that linkage may be unnecessary. John D. Echeverria, Koontz: The Very Worst Takings Decision Ever, 22 N.Y.U. Env’t L.J. 1, 40 (2014). On the question of whether the per se taking prerequisite remains an essential component of exactions jurisprudence, see infra notes 109–15 and accompanying text. ↑
95. . 576 U.S. 350 (2015). ↑
96. . Id. at 355–56. ↑
97. . See Estlund, supra note 25, at 131 (internal citation omitted). ↑
98. . Horne, 576 U.S. at 360. ↑
99. . Id. at 358. ↑
100. . Koontz v. St. Johns River Water Mgmt. Dist., 570 U.S. 595, 597 (2013); Horne, 576 U.S. at 351. ↑
101. . 582 U.S. 383 (2017). ↑
102. . Id. at 396; see also Danaya C. Wright, A Requiem for Regulatory Takings: Reclaiming Eminent Domain for Constitutional Property Claims, 49 Env’t L. 307, 365 (2019) (“The Court’s decision in Murr was a significant retreat from the per se rules of the conservative wing of the Court, undermining Lucas, and marking a possible retreat from the rigid property rights of modern regulatory takings.”). ↑
103. . Murr, 582 U.S. at 386. ↑
104. . 141 S. Ct. 2063, 2068 (2021). ↑
105. . According to one constitutional scholar, Horne’s turn to “appropriation” served as a “linguistic bridge” from the relatively confined per se rule of Loretto to the “engorged version” the Court went on to adopt in Cedar Point Nursery. Estlund, supra note 25, at 137–38. ↑
106. . 141 S. Ct. at 2069–70. ↑
107. . Id. at 2072 (“The access regulation appropriates a right to invade the growers’ property and therefore constitutes a per se physical taking.”). Cedar Point Nursery did not explain why the access afforded to union organizers via a regulation implementing a 40-year-old statute that had been in place long before the landowners commenced their agricultural business operations did not inhere in the owners’ title. However, as explored in depth in Mulvaney, supra note 7, at 710–21, the Court’s more recent decision in Tyler v. Hennepin County offered one potential answer. 143 S. Ct. 1369 (2023). In 1884, the Minnesota Supreme Court interpreted a state statute enacted in 1881 to require that “any surplus realized” from a property tax foreclosure sale “must revert to the owner.” Farnham v. Jones, 19 N.W. 83, 85 (Minn. 1884) (interpreting 1881 Minn. Laws 176). However, the state legislature changed course in 1935 in an apparent effort to incentivize property tax payments and stabilize property tax revenues, mandating that the state retain such surplus. 1935 Minn. Laws 713–14. In Tyler, Ms. Tyler had purchased a condominium in 1999. 143 S. Ct. at 1374. When she later purchased a second home, she stopped paying the taxes on the condominium and did not take advantage of pathways the state made available to retain her equity prior to foreclosure. Id. at 1373–74. When the state ultimately foreclosed and sold the condo without providing her an opportunity to secure the amount above her tax debt that the state had recouped at that sale, Ms. Tyler filed a takings suit. Id. at 1374. The Court held that Ms. Tyler had a reasonable expectation that she would have such an opportunity in the event of a foreclosure sale because, while the law in place in Minnesota since 1935 did not afford that opportunity, the law in a majority of states did. Id. at 1378–81; see also Mulvaney, Background Principles, supra note 7, at 705–11 (underscoring the Court’s use of the majority rule to define the claimant’s property interest regardless of the statutory law of the state in which the takings claim has been filed).

     Perhaps, then, like the Tyler Court’s take on Minnesota’s statutory law, the Cedar Point Nursery majority was moved by the fact that the California regulation affording union organizers qualified access to visit with workers at their place of employment did not reflect a majority view among the states. See, e.g., Adam Liptak, Supreme Court Rules Against Union Recruiting on California Farms, N.Y. Times (June 23, 2021), https://www.nytimes.com/2021/06/23/us/supreme-court-unions-farms-california.html [https://perma.cc/4L36-FBJX] (“The state regulation, issued in 1975 and unique in the nation . . . .”); Jennifer Gordon, Law, Lawyers, and Labor: The United Farm Workers’ Legal Strategy in the 1960s and 1970s and the Role of Law in Union Organizing Today, 8 U. Pa. J. Lab. & Emp. L. 1, 35 (2005) (“When the ink dried on the final rules, California could boast only the second pro-organizing farm labor law in the country . . . , one that set a gold standard for any other states that cared to follow.”). On this reading, Tyler’s categorization approach is clear: statutory restrictions do not inhere in title—and so pose a takings problem—if those restrictions do not mirror the majority view among the states. ↑

108. . 144 S. Ct. 893 (2024). ↑
109. . Chris Odinet, Guest Blogger: Mulvaney on Sheetz v. County of El Dorado, PropertyProf Blog (Jan. 10, 2024), https://lawprofessors.typepad.com/property/2024/01/guest-blogger-mulvaney-on-sheetz-v-county-of-el-dorado.html [https://perma.cc/XE74-T99T]. ↑
110. . The Court did not decide exactly which legislatively imposed conditions and fees would trigger heightened scrutiny, nor whether that scrutiny would apply differently to legislative impositions than it does to individual, adjudicative bargains. Lee Ann Fennell & Timothy M. Mulvaney, The Exactions Illusion: Sheetz’s Missing Dissent, 135 Yale. L.J. (forthcoming 2025). ↑
111. . The Sheetz Court pointed favorably to the position endorsed by the majority in Pennsylvania Coal Co. v. Mahon that “a state statute effected a taking because it prohibited the owner of mineral rights from mining coal beneath the surface estate, thus depriving the mineral rights of practically all economic value.” Sheetz, 144 S. Ct. at 902 (emphasis added). Yet Penn Central rejected this tactic in holding, in 1978, that one must consider the “parcel as a whole” in evaluating takings claims. Penn Cent. Transp. Co. v. New York City, 438 U.S. 104, 130–31 (1978) (“‘Taking[s]’ jurisprudence does not divide a single parcel into discrete segments and attempt to determine whether rights in a particular segment have been entirely abrogated”). ↑
112. . Sheetz, 144 S. Ct. at 893 (citing Stop the Beach Renourishment Inc. v. Fla. Dep’t Env’t Prot., 560 U.S. 702, 714 (2010)). ↑
113. . Indeed, sensing the moment, advocates have begun to push the Supreme Court to reconsider Penn Central. See, e.g., Petition for Writ of Certiorari, at i, G-Max Mgmt. v. State of New York, No. 21-2448, 2024 WL 1061142 (2d Cir. Mar. 12, 2024) (No. 23-1148) (presenting the question, in a takings challenge to New York’s rent-stabilization laws, whether the Court “should overrule Penn Central”). As noted, see supra note 18, it is entirely plausible that the Court may take up this invitation in the near future, despite Penn Central’s centrality to modern takings law. ↑
114. . E.g., Thomas Ross, Modeling and Formalism in Takings Jurisprudence, 61 Notre Dame L. Rev. 372, 416–17 (1986). ↑
115. . Cf. Susan Rose-Ackerman & James Rossi, Disentangling Deregulatory Takings, 86 Va. L. Rev. 1435, 1449 (2000) (warning that, “in the face of . . . uncertainty, investors may forgo otherwise profitable activities”). ↑
116. . E.g., Lovett, supra note 1, at 937–41. ↑
117. . Cf. Mulvaney, Walling Out, supra note 20, at 24–25 (framing the difference in rules-based and standards-based approaches to beach access in these terms). ↑
118. . Radin, supra note 42, at 1681–82; see also Fenster, supra note 80, at 620 (“Takings formalism . . . furthers a normative vision and narrative of judicial intervention against an expansionist regulatory state, linking a set of clear rules to a classical liberal conception of broad, static, and well-protected property rights.”). ↑
119. . Thomas W. Merrill, The Character of the Governmental Action, 36 Vt. L. Rev. 649, 652 (2012). Professor Singer has highlighted the inconsistency of the common refrain from conservatives that takings law is both unpredictable and “predictably fails to protect property rights,” and hypothesized that the former argument is serving, however faultily, as a stand-in for the latter. Singer, supra note 85, at 612–13. ↑
120. . Marc R. Poirier, The Virtue of Vagueness in Takings Doctrine, 24 Cardozo L. Rev. 93, 187 (2002); see also J. Peter Byrne, A Hobbesian Bundle of Lockean Sticks: The Property Rights Legacy of Justice Scalia, 41 Vt. L. Rev. 733, 743 (2017) (asserting that while one might theoretically favor categorical rules because they “increase[e] predictability and shield[] judges from making political calculations in individual cases,” those types of “jurisprudential concerns hardly explain the categorical rules [Justice] Scalia actually advocated in the regulatory takings area,” where “every one of his rules favors private property owners over public regulations”). ↑
121. . Duncan Kennedy, Form and Substance in Private Law Adjudication, 89 Harv. L. Rev. 1685, 1685, 1713 (1976). ↑
122. . Id. at 1685, 1713, 1717 (defining “individualism” as “the making of a sharp distinction between one’s interests and those of others, combined with the belief that a preference in conduct for one’s own interests is legitimate, but that one should be willing to respect the rules that make it possible to coexist with others similarly self-interested” and altruism as “the belief that one ought not to indulge a sharp preference for one’s own interest over those of others [and should] make sacrifices . . . share, and . . . be merciful”) (emphasis in original).

     The literature engaging on Kennedy’s general claim tying form to substance is extensive. For a particularly strident critique, see Pierre Schlag, Rules and Standards, 33 UCLA L. Rev. 379, 381 (1985) (arguing that “the attempt to tie form to substance is just so much form”). ↑

123. . E.g., James E. Krier & Stewart E. Sterk, An Empirical Study of Implicit Takings, 58 Wm. & Mary L. Rev. 35, 64 (2016). ↑
124. . See Timothy M. Mulvaney, Property-As-Society, 2018 Wis. L. Rev. 911, 957–58 (describing implementation of Penn Central’s “character” consideration). ↑
125. . Id. at 958–59. ↑
126. . Id. at 959. ↑
127. . These quadrants can be charted in a basic way with the form of reasoning on the y-axis and liability or non-liability on the x-axis:
     

     	Taking	Non-Taking
     Contextual	Quadrant I	Quadrant II
     Formalist	Quadrant III	Quadrant IV

     ↑

128. . As mentioned in the Introduction, we do not assemble this catalog of per se non-takings to endorse rule-oriented methodology in takings. Indeed, in our prior work we have expressed sympathy for the normative advantages that come with broadly employing standards in property law. E.g., Mulvaney, supra note 20, at 22–23, 31; Davidson & Mulvaney, supra note 20, at 226 n.42. Rather, we present this panoply of categorical defenses to takings claims as evidence that, at least in the takings context, the linkages between formalism and individualism, on one hand, and substance and altruism, on the other, are by no means airtight. Singer briefly made a similar observation. Singer, supra note 85, at 615 (“It is probably true that conservatives who want increased protection for property tend to favor clear rules to attain that end while liberals who favor greater regulation of property tend to promote flexible standards to define property rights, all the better to allow their limitation. But this connection between property and rules, on the one hand, and regulation and standards, on the other, is a tendency only.”). ↑
129. . The kinds of exclusions mapped in this Part are hardly unique to takings jurisprudence. The Supreme Court has, for example, recognized that certain speech is excluded from First Amendment protection, including obscenity, defamation, fraud, and a panoply of dangerous speech, such as “fighting words,” threats, incitements, and speech incident to criminal conduct. See, e.g., United States v. Williams, 553 U.S. 285, 288 (2008) (obscenity); Beauharnais v. Illinois, 343 U.S. 250, 266–67 (1952) (defamation); United States v. Alvarez, 567 U.S. 709, 723 (2012) (fraud); Virginia v. Black, 538 U.S. 343, 359 (2003) (fighting words); State v. Robert T. (In re Interest of Robert T.), 746 N.W.2d 565, 567 (Wis. 2008) (citing Watts v. United States, 394 U.S. 705, 708 (1969)) (threats); Ashcroft v. Free Speech Coal., 535 U.S. 234, 253 (2002) (citing Brandenburg v. Ohio, 395 U.S. 444, 447 (1969)) (incitements); Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 498 (1949) (speech incident to criminal conduct). ↑
130. . As noted, see supra note 6, this doctrinal landscape has been addressed in prior literature in various ways, albeit not as comprehensively as this Article sets out to do. Akesh Shah recently posted a draft paper discussing what he regards as the “constitutional anti-bundle,” or “the rights that the Takings Clause never protects.” Akesh Shah, The Anti-Bundle, at 1 (May 18, 2025) (unpublished manuscript), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=5277131 [https://perma.cc/4ED3-W8S8]. Unlike this Article’s focus on identifying and analyzing a realm of per se non-takings emanating from various state and federal sources, Shah centers his discussion on what he sees as the “federalization” of property. Id. at 4–6, 52. ↑
131. . On some level, the doctrines explored below all ultimately grapple with how our legal system defines the institution of property. We thus concede that there conceivably are alternative ways to organize the taxonomy. In our view, though, the groupings in this Part usefully illuminate the theoretical and functional limitations, set out in Part III below, of an understanding of takings law that elides per se non-takings. ↑
132. . Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1028–29 (1992); see also J. Peter Byrne, Regulatory Takings and “Judicial Supremacy”, 51 Ala. L. Rev. 949, 957 (2000) (“[R]egulatory takings rulings tend to elevate an idealized common law concept of property over the reach of statutes and regulations.”); Timothy M. Mulvaney, Foreground Principles, 20 Geo. Mason L. Rev. 837, 837 (2013) (“[T]he Court has exhibited a strong normative preference for a certain type of independent source—‘background principles’ of the common law—over others, namely state statutory and administrative law.”). ↑
133. . Lucas, 505 U.S. at 1027. ↑
134. . See Michael C. Blumm & Rachel G. Wolfard, Revisiting Background Principles in Takings Litigation, 71 Fla. L. Rev. 1165, 1169 (2019) (deeming the background principles “exception” a “categorical governmental defense to takings claims”); John D. Echeverria, Making Sense of Penn Central, 23 UCLA J. Env’t L. & Pol’y 171, 173 (2005) (remarking that the Supreme Court’s turn from the contextualized analysis of Penn Central and toward acontextual liability rules of the sort set out in Lucas and Loretto “had the potential benefit of identifying actions that would be safely immune from takings liability—assuming these per se tests came to define not only the grounds, but also the outer limits, of takings liability”).

     David Dana recently argued that the role of background principles in takings law can be variously justified on originalist grounds, reflecting common law understandings of limitations on property at the time of the adoption of the Fifth Amendment; as a reflection of the overwhelming consensus in state (and federal) legal culture; or as an instantiation of notice that owners are presumed to have. Dana, supra note 7, at 1814, 1835, 1844–45. ↑

135. . See, e.g., Lucas, 505 U.S. at 1029 (asserting that regulations restricting uses that would have amounted to a nuisance at common law do not give rise to takings liability). ↑
136. . Palazzolo v. Rhode Island, 533 U.S. 606, 629–30 (2001) (asserting that property interests are determined with reference to “common, shared understandings . . . derived from a State’s legal tradition”); Murr v. Wisconsin, 582 U.S. 383, 397 (2017) (drawing from “the whole of our legal tradition” to ascertain a landowner’s reasonable expectations). ↑
137. . Mugler v. Kansas, 123 U.S. 623, 667 (1887). ↑
138. . Phillips v. Washington Legal Foundation, 524 U.S. 156, 167 (1998). ↑
139. . See PruneYard Shopping Ctr. v. Robins, 447 U.S. 74, 84 (1980) (recognizing the states’ “residual authority that enables [them] to define ‘property’ in the first instance”). ↑
140. . See infra text accompanying notes 188–95. ↑
141. . See infra text accompanying notes 193–203. ↑
142. . Restatement (Second) of Torts § 821D, § 821D cmt. a (A.L.I., 1979). ↑
143. . Id. § 821B. ↑
144. . See, e.g., Cedar Point Nursery v. Hassid, 141 S. Ct. 2063, 2079 (2021) (“[T]he government owes a landowner no compensation for requiring him to abate a nuisance on his property, because he never had a right to engage in the nuisance in the first place.”). ↑
145. . E.g., John F. Hart, Colonial Land Use Law and Its Significance for Modern Takings Doctrine, 109 Harv. L. Rev. 1252, 1291 (1996); Gregory S. Alexander, The Social-Obligation Norm in American Property Law, 94 Cornell L. Rev. 745, 756 (2009); Christopher Serkin, Existing Uses and the Limits of Land Use Regulations, 84 N.Y.U. L. Rev. 1222, 1240 (2009). ↑
146. . Some activities are considered nuisances per se, regardless of context. 58 Am. Jur. 2d Nuisances § 11 (defining a nuisance per se as an “act, occupation, or structure that, by its very nature and of itself, is a nuisance at all times and under any circumstances, regardless of location or surroundings, the care with which it is conducted, or the reasonableness of the defendant’s conduct”). ↑
147. . See, e.g., Cicero Gas & Food, Inc. v. City of Chicago, 2025 IL App. (1st) 242397-U, ¶ 33 (“In the present case, it is undisputed that the summary closure order issued pursuant to the City’s municipal ordinance was a valid exercise of the City’s police powers in abating a public nuisance. Accordingly, the third Penn Central factor does not support the plaintiff’s claim.”); see also Echeverria, supra note 133, at 208 (explaining that where the character of a regulation does not rise to the level of a nuisance, its harm-preventing character should and often has been considered “a relevant, if not necessarily dispositive, consideration in a Penn Central case”). ↑
148. . See, e.g., Rockleigh Country Club, LLC v. Hartford Ins. Grp., No. A-2615-21, 2023 WL 2335707, at *4 (N.J. Super. Ct. App. Div. Mar. 3, 2023) (concluding that a claimant’s challenge to an administrative order “fails as a matter of law because the exception to a State’s duty to pay just compensation for a regulatory or per se taking applies” given that the State acted to “abat[e] the danger posed” by COVID-19). ↑
149. . David Coursen, Lucas v. South Carolina Coastal Council: Indirection in the Evolution of Takings Law, 22 Env’t L. Rep. 10778, 10784 (1992) (“In the guise of articulating one categorical rule—a denial of all use works a taking—the Court has implicitly established another principle that state-imposed [background] limitations on property use always defeat a taking claim.”). ↑
150. . Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1029 (1992). ↑
151. . Id. at 1029–30. These declarations by the Lucas Court are rather peculiar. It is not evident that either of these land uses traditionally amounted to a nuisance at common law. Under the common enemy rule, expelling surface water did not give rise to nuisance liability, and, at least under classical conceptions of freedom of use, there was no duty to avoid building in unsafe areas. Nonetheless, the Court declared that landfilling measures that flood another’s land and the maintenance of structures on unstable lands both amount to nuisances, and thereby categorically obviate takings liability should a state entity preclude either by regulation. Id. ↑
152. . Non-liability is ensured in at least one idiosyncratic instance on the flipside, too: Most courts to address the matter have held that right-to-farm statutes immunizing controlled animal feeding operations against nuisance liability do not amount to a taking of the properties that suffer the brunt of the externalities generated by those facilities. See, e.g., L. Paul Goeringer & H.L. Goodwin, An Overview of Arkansas’ Right-to-Farm Law, 9 J. Food L. & Pol’y 1, 14 (2013). ↑
153. . See Cedar Point Nursery v. Hassid, 141 S. Ct. 2063, 2079 (2021) (asserting that the state can demand that an owner “abate a nuisance on his property” without triggering takings liability). ↑
154. . 379 U.S. 241 (1964). ↑
155. . Id. at 261. ↑
156. . Id.; see also Bell v. Maryland, 378 U.S. 226, 255 (1964) (Douglas, J., concurring) (asserting that “the good old common law” enshrined in the Fourteenth Amendment included “[t]he duty of common carriers to carry all, regardless of race, creed, or color”). ↑
157. . See Joseph William Singer, No Right to Exclude: Public Accommodations and Private Property, 90 Nw. U. L. Rev. 1283, 1291–92 (1996) (highlighting that innkeepers and common carriers have a common law duty to serve the public, subject to reasonable limitations to protect their business interests, that predates the Civil Rights Act of 1964). ↑
158. . Heart of Atlanta Motel, 379 U.S. at 261. ↑
159. . E.g., Nikolas Bowie, Antidemocracy, 135 Harv. L. Rev. 160, 194–96 (2021). ↑
160. . Cedar Point Nursery, 141 S. Ct. at 2076–77 (citing Heart of Atlanta Motel, 379 U.S. at 261). ↑
161. . John A. Lovett & Björn Hoops, Adverse Possession by the State: Toward Remedial Equivalency, 69 Loy. L. Rev. 1, 78 (2022). ↑
162. . See, e.g., Simon v. Sch. Bd. of Dist. No. 2, 300 N.W. 851, 851–53 (Mich. 1941) (holding that a school district acquired ownership of a second acre after a grant of a single acre from a common grantor when it fenced in both acres on the belief that it owned both acres and occupied both acres for school purposes for more than forty years before the mistake was uncovered). ↑
163. . See, e.g., Lovett & Hoops, supra note 161, at 36 (noting that “almost all state and federal courts across the U.S. have . . . consistently rejected the argument that adverse possession or prescription by a governmental entity endowed with eminent domain power is a taking of private property that requires the payment of just compensation to comply with constitutional norms”). For a critical view of this jurisprudence, see, for example, Andrew Dick, Making Sense Out of Nonsense: A Response to Adverse Possession by Governmental Entities, 7 Nev. L.J. 348, 351, 375 (2007). ↑
164. . 407 S.W.2d 711 (Ky. 1966). ↑
165. . Id. at 712. ↑
166. . 478 N.E.2d 773 (Ohio 1985). ↑
167. . Id. at 775 (reasoning that “once the statutory period . . . has expired, the former titleholder has lost his claim of ownership and the adverse possessor is thereafter maintaining its possession, not taking property”); see also Texaco, Inc. v. Short, 454 U.S. 516, 530 (1982) (“It is the owner’s failure to make any use of the property—and not the action of the State—that causes the lapse of the property right; there is no ‘taking’ that requires compensation.”); City of Gainesville v. Morrison Fertilizer, Inc., 158 S.W.3d 872, 877 (Mo. Ct. App. 2005) (“[A] public entity is no longer ‘taking’ private property after it acquires title by adverse possession.”); Stickney v. City of Saco, 770 A.2d 592, 603 (Me. 2001) (“The plaintiffs’ state takings claim . . . has been extinguished by the expiration of the prescriptive period.”); Rogers v. Marlin, 754 So.2d 1267, 1273 (Miss. App. 1999) (“Unlike eminent domain[,] . . . the original owner of the property over which the prescriptive easement in question runs has long since forfeited his right to demand payment for the easement over his property.”); Reitsma v. Pascoag Reservoir & Dam, LLC, 774 A.2d 826, 837 (R.I. 2001) (deeming any takings claims to have lapsed “because of the owners’ failure to initiate a timely action asserting such claims and because of their failure otherwise to interpose a timely objection . . . before the prescriptive ten-year period expired”); Petersen v. Port of Seattle, 618 P.2d 67, 70 (Wash. 1980) (holding that an “easement, if prescriptively acquired, would not be compensable”). ↑
168. . Alfred Brophy, Grave Matters: The Ancient Rights of the Graveyard, 2006 BYU L. Rev. 1469, 1479 (2006). ↑
169. . 519 N.W.2d 367 (Iowa 1994). ↑
170. . Id. at 368–69. ↑
171. . Id. at 371. ↑
172. . Id. But see Thompson v. City of Red Wing, 455 N.W.2d 512, 516 (Minn. Ct. App. 1990) (rejecting a takings challenge to a prohibition on removing gravel from burial grounds on the view that this prohibition allowed continued prior and reasonable uses of the land). ↑
173. . 135 S.W.3d 747 (Tex. App. 2003). ↑
174. . Id. at 751. ↑
175. . Id. The Supreme Court recently sided with landowners challenging burial access rights during daylight hours on the issue of whether they could file such a challenge in federal courts before seeking relief in state court. Knick v. Township of Scott, 139 S. Ct. 2162, 2167–68 (2019). However, commentators have noted that this claim, on the merits, has “almost no chance to succeed” in light of the “longstanding common law requirement . . . restrict[ing] private landowners’ ability to exclude others from accessing burial grounds.” Blumm & Wolfard, supra note 134, at 1189. ↑
176. . Eggerson v. Ancar, 6 Teiss. 417, 418–19 (La. Ct. App. 1909) (“The mere fact of setting aside the land as a graveyard and permitting its use for burial purposes was in our opinion sufficient to constitute a valid dedication.”). ↑
177. . See Brophy, supra note 168. ↑
178. . As then-Chief Justice Rehnquist noted in his dissent in Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l Planning Agency, 535 U.S. 302 (2002):

     When a regulation merely delays a final land-use decision, we have recognized that there are other background principles of state property law that prevent the delay from being deemed a taking. We thus noted in [First English Evangelical Lutheran Church of Glendale v. County of Los Angeles] that our discussion of temporary takings did not apply “in the case of normal delays in obtaining building permits, changes in zoning ordinances, variances, and the like.”

     Id. at 351–52 (Rehnquist, C.J., dissenting) (quoting First English Evangelical Lutheran Church of Glendale v. Cnty. of Los Angeles, 482 U.S. 304, 321 (1987)). ↑

179. . 533 U.S. 606, 628 (2001). ↑
180. . Id. at 629. ↑
181. . In Arkansas Game & Fish Comm’n v. United States in 2012, for example, the Supreme Court left open the possibility that, had the federal government provided evidence that its dam operation alterations were consistent with principles set forth in Arkansas law surrounding water rights, the state would not have had a viable takings claim when those alterations flooded state-owned lands. See Ark. Game & Fish Comm’n v. United States, 568 U.S. 23, 38 (2012) (declining to “address the bearing, if any, of Arkansas water-rights law on this case”). In 2017, the Court intimated in Murr v. Wisconsin that an ordinance requiring the merger of small neighboring lots enacted eighteen years prior to the claimants’ acquisition of two such lots amounted to a background principle that posed a significant hurdle to—although did not foreclose entirely—a takings challenge to that ordinance’s prohibition on constructing homes on both lots. Murr v. Wisconsin, 582 U.S. 383, 401–02 (2017). And the Court’s 2023 opinion in Tyler v. Hennepin again suggested that statutes in place in the state in which a claimant alleges a taking occurred are on the list of “independent sources” to which courts can turn in uncovering the background principles that define property interests. Tyler v. Hennepin Cnty., 143 S. Ct. 1369, 1375 (2023). ↑
182. . See Nestor M. Davidson, Standardization and Pluralism in Property Law, 61 Vand. L. Rev. 1597, 1661 (2008) (discussing how even relatively new property law frameworks such as zoning have become background principles of state property law). ↑
183. . J. Inst. 2.1.1 (Thomas Collett Sandars trans., 1905). The summary of the public trust doctrine’s historical origins offered in this paragraph draws from Timothy M. Mulvaney, Instream Flows and the Public Trust, 22 Tul. Env’t L.J. 315, 345–47 (2009). ↑
184. . Joseph L. Sax, The Public Trust Doctrine in Natural Resources Law: Effective Judicial Intervention, 68 Mich. L. Rev. 471, 475–76 (1970). Some courts seem to suggest that the state may terminate public trust rights by transferring public trust property to a private party via a deed that expressly states that the transfer is unencumbered by such rights. See, e.g., Greater Providence Chamber of Com. v. Rhode Island, 657 A.2d 1038, 1040 (R.I. 1995) (holding that an express legislative grant was “necessary and appropriate” to convey an interest in a parcel of land free of the public trust doctrine). In New Jersey, though, “the sovereign never waives its right to regulate the use of public trust property.” Karam v. N.J. Dep’t of Env’t Prot., 705 A.2d 1221, 1228 (N.J. Super. Ct. App. Div. 1998) (citing Illinois Central R.R. Co. v. Illinois, 146 U.S. 347, 453 (1892)), aff’d per curium 723 A.2d 943 (N.J. 1999) (mem.); see also Glass v. Goeckel, 703 N.W.2d 58, 62 (Mich. 2005) (holding that the rights encompassed under the public trust doctrine are inalienable). ↑
185. . See Matthew Hale, De Jure Maris et Braciorum Ejusdem (1787), reprinted in Stuart A. Moore, A History of the Foreshore and the Law Relating Thereto 374 (3d ed. 1888) (describing the king’s authority over public rivers, which were public “highways by water”). ↑
186. . See Timothy M. Mulvaney & Brian Weeks, Waterlocked: Public Access to New Jersey’s Coastline, 34 Ecology L.Q. 579, 583–84 (2007) (explaining that “the rights of navigation and fishery in the sea and other tidal waterways” were the “permanent property of the realm” and were not transferred when the King conveyed private ownership of land). ↑
187. . See Martin v. Waddell’s Lessee, 41 U.S. 367, 413–14 (1842) (explaining that, when the King transferred property rights to the Duke of York, the rights were passed “in the same condition in which they had been held by the Crown, and under the same trusts”). ↑
188. . See id. at 410–11 (explaining that, after the American Revolution, the people of each state “[held] the absolute right to all their navigable waters and the soils under them”); see also Shively v. Bowlby, 152 U.S. 1, 36 (1894) (“The shores and navigable waters and the soil under them were not granted by the Constitution to the United States, but were reserved to the States respectively.” (quoting St. Clair Cnty. v. Lovingston, 90 U.S. 46, 68 (1874))). ↑
189. . Ordinance of 1787: The Northwest Territorial Government, § 14, art. V (1787); Pollard’s Lessee v. Hagan, 44 U.S. (3 How.) 212, 222–23 (1845); Shively, 152 U.S. at 57. ↑
190. . See, e.g., Matthews v. Bay Head Improvement Ass’n, 471 A.2d 355, 365 (N.J. 1984) (explaining that, in situations in which the beachfront is owned by a “quasi-public” entity, the public trust doctrine includes dry sand areas “where use of dry sand is essential or reasonably necessary for enjoyment of the ocean”); Raleigh Ave. Beach Ass’n v. Atlantis Beach Club, Inc., 879 A.2d 112, 124 (N.J. 2005) (extending Matthews to privately owned dry sand beaches); Chiesa v. D. Lobi Enters., No. A-6070-09T3, 2012 WL 4464382, at *7 (N.J. Super. Ct. App. Div. Sept. 28, 2012) (holding that a written agreement between a private beach club and state officials “limiting public access to the upland dry beach controlled by the Club is void as against public policy”). These expansions, explained the New Jersey Supreme Court in its 1984 decision in Matthews, rested on a perception of the public trust doctrine not as a “fixed or static” principle but instead one to “be molded and extended to meet changing conditions and needs of the public it was created to benefit.” Matthews, 471 A.2d at 365 (quoting Borough of Neptune City v. Borough of Avon-by-the-Sea, 294 A.2d 47, 54 (1972)). ↑
191. . Esplanade Properties, LLC v. City of Seattle, 307 F.3d 978 (9th Cir. 2002). ↑
192. . Id. at 984–85. ↑
193. . Id. at 985; see also R.W. Docks & Slips v. State, 628 N.W.2d 781, 785 (2001) (holding that “even if [the claimant] had a recognizable property interest in the undeveloped boat slips, there was no unconstitutional taking because its riparian right to construct structures on the bed of Lake Superior was subject to the public trust doctrine”). ↑
194. . McQueen v. S.C. Coastal Council, 580 S.E. 2d 116 (S.C. 2003). ↑
195. . Id. 119–20. ↑
196. . Nies v. Town of Emerald Isle, 780 S.E.2d 187 (N.C. App. 2015). ↑
197. . Id. at 197. ↑
198. . Id. at 198. ↑
199. . Id. at 197. ↑
200. . Coastal Petroleum v. Chiles, 701 So. 2d 619, 624–25 (Fla. Dist. Ct. App. 1997) (emphasis removed). ↑
201. . Id. at 624–25. ↑
202. . See, e.g., Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 57 (1824) (“the navigable rivers in the State [] are, emphatically, the property of the people”); Gilman v. Philadelphia, 70 U.S. (3 Wall.) 713, 717 (1865) (“The power to regulate commerce comprehends the control for that purpose, and to the extent necessary, of all the navigable waters of the United States[.]”); United States v. Twin City Power Co., 350 U.S. 222, 228 (1956) (“What the Government can grant or withhold and exploit for its own benefit has a value that is peculiar to it and that no other user enjoys. To require the United States to pay for this water-power value would be to create private claims in the public domain.” (internal citation omitted)); United States v. Commodore Park, Inc., 324 U.S. 386, 390 (1945); (recognizing “the dominant power of the government to control and regulate navigable waters in the interest of commerce, without payment of compensation to one who under state law may hold ‘technical’ legal title (as between himself and others than the government) to a part of the navigable stream’s bed”). ↑
203. . Scranton v. Wheeler, 179 U.S. 141, 162 (1900). ↑
204. . Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1028–29 (1992). ↑
205. . Scranton, 179 U.S. at 162. Citing Scranton and a litany of precedents in its wake, the Court explained in 1967 that:

     The proper exercise of this power [to regulate navigable waters] is not an invasion of any private property rights in the stream or the lands underlying it, for the damage sustained does not result from taking property from riparian owners within the meaning of the Fifth Amendment but from the lawful exercise of a power to which the interests of riparian owners have always been subject. Thus, without being constitutionally obligated to pay compensation, the United States may change the course of a navigable stream, or otherwise impair or destroy a riparian owner’s access to navigable waters, even though the market value of the riparian owner’s land is substantially diminished.

     United States v. Rands, 389 U.S. 121, 123 (1967) (internal citations omitted); see also United States v. Fuller, 409 U.S. 488, 492 (1973) (noting that Rands and similar cases reflect the proposition that “the Government as condemnor may not be required to compensate a condemnee for elements of value . . . that it might have destroyed under the exercise of governmental authority other than the power of eminent domain.”). ↑

206. . See Amy K. Kelley, The Commerce Clause and Navigability, in 2 Waters and Water Rights § 35.02(c) (Amy K. Kelley ed., 3d ed. 2019) (“With regard to most navigable waters, when the public exercises its traditional right of access, or the government exercises the navigation power itself, an impact upon private property rights that might be compensable between private parties, or against the government under other circumstances, will not be constitutionally compensable under the navigation servitude.” (internal footnotes omitted)); David S. Rubenstein, Takings and Management of the Navigational Servitude, 1 Modern Constitutional Law § 17:6 (3d ed.) (“In most circumstances, . . . loss of property as an incident of normal maintenance of the federal government’s navigational servitude will not result in compensation to private property owners.”); see also Eileen Monahan, Note, The Navigational Servitude: The Role of a Categorical Exception Within a System of Ad-Hoc Review, 40 Colum. J. Env’t L. 359, 360 (2015) (calling on courts to reconsider the “categorical exception” that “allows the federal government to exercise its power to regulate and control the nation’s navigable waterways without paying compensation for the resulting economic loss”). ↑
207. . 480 U.S. 700 (1987). ↑
208. . Id. at 704. ↑
209. . Id. The Court stated:

     The proper exercise of this power is not an invasion of any private property rights in the stream or the lands underlying it, for the damage sustained does not result from taking property from riparian owners within the meaning of the Fifth Amendment but from the lawful exercise of a power to which the interests of riparian owners have always been subject.

     Id. ↑

210. . United States v. Kan. City Life Ins. Co., 339 U.S. 799, 808 (1950). The Court of Federal Claims, in turn, rejected a takings challenge to a decision by the Army Corps of Engineers that resulted in the claimant’s loss of deep-draft vessel access to its commercial shipping terminal. Lone Star Indus., Inc. v. United States, 109 Fed. Cl. 746, 750–51 (2013). The court asserted that the terminal owner’s property interests were “subsumed by the federal navigational servitude,” such that “[t]he economic value attributable to a strategic riparian location is not a compensable property interest when diminished or destroyed by the United States in aid of navigation.” Id. at 756–57.

     Similarly, the Third Circuit rejected a takings challenge to a regulatory prohibition on the development of a riverfront coal loading facility, given that this act merely replicated “a limitation always inherent in the landowners’ title.” United States v. 30.54 Acres of Land, 90 F.3d 790, 795 (3d Cir. 1996). “Because the navigational servitude is a preexisting limitation on the title of riparian property,” the court explained, “exercise of the servitude cannot constitute a taking, even where it deprives a landowner of all economically reasonable use of his land.” Id.; see also Applegate v. United States, 35 Fed. Cl. 406, 414–15 (Fed. Cl. 1996) (“The holdings of the Supreme Court and the Federal Circuit establish that the Government owes no compensation for injury or destruction of a claimant’s rights when they lie within the scope of the navigational servitude.”); Marks v. United States, 34 Fed. Cl. 387, 403 (1995) (rejecting a takings challenge based on the background principles underpinning the navigational servitude). ↑

211. . John Lovett aptly deemed the common law rules and presumptions at play in this context the “Ambulatory Coastline Doctrine,” which we adopt here. John A. Lovett, Ownership of Submerged Land on the Louisiana Coast: Resolving the Dual-Claimed Land Dilemma, 84 La. L. Rev. 905, 969 (2024). For a similar phraseology, see Alyson C. Flournoy, Beach Law Cleanup: How Sea-Level Rise Has Eroded the Ambulatory Boundaries Legal Framework, 42 Vt. L. Rev. 89, 93, 152 (2017). ↑
212. . James Bruce S. Flushman, Water Boundaries: Demystifying Land Boundaries Adjacent to Tidal or Navigable Waters 129 (2002) (stating the general rule that “if land is added through the process of accretion . . . the property boundary follows the changing physical location of the mean high-water line”); Donna R. Christie, Of Beaches, Boundaries and SOBs, 25 J. Land Use & Env’t L.J. 19, 26 (2009) (“The gradual and imperceptible addition of material to a beach is known as accretion and results in the legal boundary moving seaward.”). ↑
213. . For a rigorous treatment of the intricacies of Louisiana’s “dual-claim” approach, see generally Lovett, supra note 211. ↑
214. . See, e.g., Joseph L. Sax, The Accretion/Avulsion Puzzle: Its Past Revealed, Its Future Proposed, 23 Tul. Env’t L.J. 305, 349 (2010) (recounting an instance in which “[t]he land of a riparian owner along the Colorado River was gradually lost to submergence as the river meandered slowly toward the bank on his side[,] . . . [such that] the State of Arizona, as owner of the bottomland of the navigable river, gained title to the land thus submerged”). ↑
215. . See, e.g., J. Peter Byrne, The Cathedral Engulfed: Sea-Level Rise, Property Rights, and Time, 73 La. L. Rev. 69, 100 (2012); Katrina M. Wyman & Nicholas R. Williams, Migrating Boundaries, 65 Fla. L. Rev. 1957, 1970–71, 1985 (2013). ↑
216. . 636 S.W.3d 268 (Tex. App. 2021). ↑
217. . Id. at 281. ↑
218. . Id. ↑
219. . Walsh v. Potomac Airfield Airport, 31 F. App’x 818, 821 n.2 (4th Cir. 2002). ↑
220. . United States v. Causby, 328 U.S. 256, 260–66 (1946). ↑
221. . Even Richard Epstein seems to agree. See Richard Epstein et al., Proceedings of the Conference on Takings of Property and the Constitution, 41 U. Miami L. Rev. 49, 191 (1986) (“I would never hold that a statute which limits the area of invasive actionable trespasses at 1500 feet, while leaving the upper airspace free, is unconstitutional. [The ad coelum] rule gives a bright line which squares with a strong intuition, and what you gain by way of clarity more than offsets the loss of basic property rights in upper airspace.” (citation omitted)). ↑
222. . Michael C. Blumm & Aurora Paulsen, The Public Trust in Wildlife, 2013 Utah L. Rev. 1437, 1461–62 (2013). ↑
223. . Id. at 1453–54. ↑
224. . See James A. Tober, Who Owns the Wildlife?: The Political Economy of Conservation in Nineteenth-Century America 6 (1981) (explaining the importance of wildlife “[to] the local economy” and as “a major source of foreign exchange” in the American colonies). ↑
225. . See Michael C. Blumm & Erika Doot, Oregon’s Public Trust Doctrine: Public Rights in Waters, Wildlife, and Beaches, 42 Env’t L. 375, 405 (2012) (recounting the position of the former Oregon Attorney General that “regardless of bed ownership, both sovereign ownership of wildlife and the public’s navigation easement guarantee public rights to fish and hunt on all navigable waters in Oregon”). ↑
226. . John D. Echeverria & Julie Lurman, “Perfectly Astounding” Public Rights: Wildlife Protection and the Takings Clause, 16 Tul. Env’t L.J. 331, 375 (referring to the public ownership of wildlife doctrine as amounting to a “per se rule of nonliability” in certain instances of wildlife regulation); id. at 385 (describing the public ownership of wildlife doctrine as conferring “immunity . . . from regulatory takings”). ↑
227. . Horne v. Dep’t of Agric., 576 U.S. 350 (2015). ↑
228. . Id. at 356. ↑
229. . 279 U.S. 392 (1929). ↑
230. . Id. at 393–95, 398. ↑
231. . Horne, 576 U.S. at 366–67 (quoting Leonard v. Earle, 141 A. 714, 716 (1928)). ↑
232. . Id. at 367. Consistent with the reasonings later articulated in Horne, a New York appellate court rejected a claim that a state wildlife preservation law that precluded fencing off endangered snakes allowed wildlife to physically occupy the claimant’s land in violation of takings protections. State v. Sour Mountain Realty, Inc., 276 A.D.2d 8, 9–10, 16 (N.Y. App. Div. 2000). As the court concluded, “the State, through the exercise of its police power, is safeguarding the welfare of an indigenous species that has been found to be threatened with extinction. The State’s interest in protecting its wild animals is a venerable principle that can properly serve as a legitimate basis for [this] exercise.” Id. at 16. ↑
233. . Cf. Rose, supra note 10, at 25–29 (discussing structural disruptions in the definitional boundaries of property). ↑
234. . See generally Stephan Stohler, Slavery and Just Compensation in American Constitutionalism, 44 L. & Soc. Inquiry 102 (2019) (“[S]lavery was simultaneously an inhibitor and promoter of just compensation in [antebellum state constitutions.]”). Cf. Rose, supra note 10, at 24–29 (tracing the history of compensation for emancipated enslaved persons from the early Republic up to the aftermath of the Civil War); T. Nicolaus Tideman, Takings, Moral Evolution, and Justice, 88 Colum. L. Rev. 1714, 1714 (1988) (“When through an evolution in our moral understanding we begin to realize that a class of entitlements is unjustly held, courts may begin to deny protection to those entitlements before we reform their holding through legislation.”). ↑
235. . Section four of the Fourteenth Amendment provides, in relevant part, that “neither the United States nor any State shall assume or pay . . . any claim for the loss or emancipation of any slave; but all such . . . claims shall be held illegal and void.” U.S. Const. amend. XIV, § 4; see also Landmark Legislation: The Fourteenth Amendment, United States Senate (“The [Fourteenth Amendment] prohibited former Confederate states from . . . compensating former slave owners for the emancipation of their enslaved people.”). ↑
236. . Treanor, supra note 26, at 839 (quoting the letter from Madison to Evans); see also Kaimipono David Wenger, Slavery as a Takings Clause Violation, 53 Am. U. L. Rev. 191, 196 n.18 (2003) (citing A. Leon Higginbotham, Jr., In the Matter of Color: Race and the American Legal Process—The Colonial Period 94–95, 136 (1978) (describing similar sentiments throughout discourse across New York and Massachusetts about the Takings Clause protecting property rights in enslaved people); Rose, supra note 10, at 24–25 (discussing a 1781 letter printed in the New Jersey Gazette asserting that uncompensated emancipation deprived owners of property in violation of the Constitution) (citing Arthur Zilversmit, The First Emancipation: The Abolition of Slavery in the North 145 (1967)).

     Professor Treanor has noted that Madison’s original proposed draft bill of rights included a version of the Takings Clause that would have barred the federal government from taking “real or chattel property, including slaves, without compensation.” Treanor, supra note 26, at 837. ↑

237. . See, e.g., National Endowment for the Humanities, 150 Years Ago: Compensated Emancipation (Apr. 12, 2012), https://www.neh.gov/news/150-years-ago-compensated-emancipation [https://perma.cc/4J54-E7KS] (archives documenting that “all slaves in the District of Columbia” were “to be freed and their owners compensated.”); Mary Mitchell, “I Held George Washington’s Horse”: Compensated Emancipation in the District of Columbia, in 63/65 Records of the Colum. Hist. Soc’y, Wash., D.C. 221, 224 (Francis Coleman Rosenberger ed., 1963–65) (detailing the process of how previous enslavers received compensation); Abraham Lincoln and Emancipation, Library of Congress, https://www.loc.gov/collections/abraham-lincoln-papers/articles-and-essays/abraham-lincoln-and-emancipation/ [https://perma.cc/5BV9-592N] (discussing President Lincoln’s efforts to eradicate slavery prior to the signing of the Compensated Emancipation Act); see also Jonathan W. White, A House Built by Slaves: African American Visitors to the Lincoln White House 106 (2022) (“When Congress passed the DC Emancipation Act in April 1862, giving compensation to ‘loyal’ owners, [Gabriel Coakley, a leader of the black Catholic community in Washington] successfully petitioned for his wife and children, since he had purchased their freedom in earlier years. He was one of only a handful of black Washingtonians to make a claim like this. The federal government paid him $1489.20 for eight slaves that he ‘owned’ (he had claimed their value at $3,300).”). ↑
238. . See Stohler, supra note 234, at 103 (examining a data set of eighty-one state constitutions and their drafting conventions from 1776 to 1860 and concluding that while many state constitutions had relatively low compensation adoption rates, “[p]roslavery delegates were ambivalent about compensation clauses because, although they secured value, these provisions implicitly condoned regulation and perhaps even facilitated takings”); see also George Rutherglen, State Action, Private Action, and the Thirteenth Amendment, 94 Va. L. Rev. 1367, 1382 (2008) (noting that some northern states pursued compensated abolition before the Civil War). ↑
239. . Wenger, supra note 236, at 196 n.18; Lea S. VanderVelde, The Labor Vision of the Thirteenth Amendment, 138 U. Pa. L. Rev. 437, 444 n.41 (1989); Akhil Reed Amar, Foreword: The Document and the Doctrine, 114 Harv. L. Rev. 26, 72 (2000) (“[T]he Thirteenth Amendment itself expropriated legal ‘property’—that is, [enslaved people]—without compensation.”). ↑
240. . Richard H. Chused, Married Women’s Property Law: 1800-1850, 71 Geo. L.J. 1359, 1398–400 (1983); Joseph A. Custer, The Three Waves of Married Women’s Property Acts in the Nineteenth Century with a Focus on Mississippi, New York, and Oregon, 40 Ohio N.U. L. Rev. 395, 397 (2014). ↑
241. . See, e.g., Baker’s Executors v. Kilgore, 145 U.S. 487, 491 (1892) (“Such legislation is for the protection of the property of the wife, and neither impairs nor defeats any vested right of the husband.”). ↑
242. . Rose, supra note 10, at 24–26, 37 (discussing how state legislatures seized Loyalist property without compensation and arguing that the displacement of Native Americans from the system of property constituted a process of “radical othering”). Daniel Hulsebosch recently argued that understanding the nature of property at the time of the American Revolution requires engaging with the fact of “a massive program of state expropriation that transferred millions of acres of land, thousands of enslaved people, and countless household and agricultural goods away from loyalists, who were excluded by law from membership in the revolutionary polity.” Daniel J. Hulsebosch, Confiscation Nation: Settler Postcolonialism and the Property Paradox, 33 Yale J.L. & Human. 227, 231 (2022) (reviewing Clare Priest, Credit Nation: Property Laws and Institutions in Early America (2021)); see id. at 238–40 (elaborating on the scale of the project of revolutionary confiscation). Other significant alterations in property laws abound. Consider, for instance, the shift in western states from riparian rights to the system of prior appropriation. See Coffin v. Left Hand Ditch Co., 6 Colo. 443, 447 (1882) (deeming this shift non-compensable due to “imperative necessity”). ↑
243. . Arguably as well, the end of feudal estates in the United States did not generate calls for compensation to the former feudal holders. See Singer, supra note 85, at 604–05, 640–41 (noting that the U.S. legal system has democratically chosen to forego property rights tied to feudalism and inherited aristocracy, and, thus, implicitly deemed just compensation inapplicable for merely obeying this founding rule of law); Robert C. Bird & Lynda J. Oswald, Necessity as a Check on State Eminent Domain Power, 12 U. Pa. J. Const. L. 99, 103–4 (2009) (noting that principles of compensation for takings emerged after feudalism).

     It also is arguably true that non-compensation remains the norm for many less significant, incremental changes to property law, not all of which are entirely prospective. New York’s legislature, for example, modified its law of adverse possession in 2008, adding a good-faith requirement that at least had been hinted at in various respects in the caselaw for some time. N.Y. Real Prop. Actions & Proc. § 501. That new requirement, while adding to the rights of owners, also subtly eliminated an aspect of the rights of neighbors and others who would previously have been able to claim ownership after meeting the other requirements for adverse possession, an important way that neighbors resolve boundary disputes, among other functions. Nadav Shoked, Who Needs Adverse Possession?, 89 Fordham L. Rev. 2639, 2640 (2021). It is hard to imagine, however, a now-partially barred potential adverse possessor being able to bring a takings claim to challenge that loss. Where the line stands between such accretive change and the kind of change at issue in a case like Cedar Point Nursery, where the Supreme Court vindicated a takings challenge to California’s granting of a limited access right, is hard to say. But such a line must remain or a vast array of other marginal legislative changes to property rights would be vulnerable. ↑

244. . Cf. Maynard v. Hill, 125 U.S. 190, 216 (1888) (upholding a legislative divorce decree that had the effect of defeating claims of a grantee’s former wife to a tract of public land). ↑
245. . The examples above are far from the only instances of partial non-commodification leading to the rejection of claims for compensation under the Takings Clause. Other examples include certain government licenses and even taxi medallions. See Christopher Serkin, Existing Uses and the Limits of Land Use Regulations, 84 N.Y.U. L. Rev. 1222, 1241 (2009) (discussing examples of regulations limiting existing uses and revocations of government licenses that would not receive just compensation due to their purposes of public harm prevention); see also Katrina M. Wyman, Taxi Regulation in the Age of Uber, 20 N.Y.U. J. Legis. & Pub. Pol’y 1, 81–83 (2017) (noting that courts routinely reject claims “seeking compensation for the recent drop in medallion values due to the legalization of Uber and other taxi apps”). ↑
246. . Other circumstances that may obviate takings liability on arguably categorical terms include situations in which owners opt in to certain public benefits. See Lee Anne Fennell, Escape Room: Implicit Takings after Cedar Point Nursery, 17 Duke J. Const. L. & Pub. Pol’y 1, 16–17 (2022) (offering construction-site regulations as an example where owners who hire contractors are deemed to accept the accompanying regulatory requirements). Moreover, the non-enforcement of regulations and the non-enactment of regulations, which some commentators have argued might theoretically give rise to takings liability, generally do not trigger a takings analysis. See Timothy M. Mulvaney, Non-Enforcement Takings, 59 B.C. L. Rev. 145, 146, 150 (2018) (addressing inaction via non-enforcement); Christopher Serkin, Passive Takings: The State’s Affirmative Duty to Protect Property, 113 Mich. L. Rev. 345, 361 (2014) (discussing inaction via a decision not to regulate). ↑
247. . This is not to argue that there are no legal or policy concerns driving the examples in subpart II(A), above, as there clearly are. Rather, the distinction is that the structure of the instances in this subpart lends itself more easily to a logic that recognizes the relevant property interest but denies takings compensation nonetheless. ↑
248. . Examples in this subpart could be considered instances of “background principles” of property law that “inhere in title,” even if that is not how courts always articulate their foundations. The doctrines bear separate treatment, however, to underscore the distinctive logic they represent from the instances discussed in Part II.A. ↑
249. . See Cedar Point Nursery, 141 S. Ct. at 2079 (noting that “background limitations” on property rights “encompass traditional common law privileges to access private property . . . such [as the] privilege allow[ing] individuals to enter property in the event of public or private necessity”); Lucas, 505 U.S. at 1029 n.16 (noting the durability of this exception).

     For a sample of the extensive literature on emergency and necessity in takings, see, for example, Saxer, supra note 6, at 61; Brian Angelo Lee, Emergency Takings, 114 Mich. L. Rev. 391, 391 (2015); Susan S. Kuo, Disaster Tradeoffs: The Doubtful Case for Public Necessity, 54 B.C. L. Rev. 127, 127 (2013); Derek T. Muller, “As Much Upon Tradition as Upon Principle”: A Critique of the Privilege of Necessity Destruction Under the Fifth Amendment, 82 Notre Dame L. Rev. 481, 483 (2006); John Alan Cohan, Private and Public Necessity and the Violation of Property Rights, 83 N.D. L. Rev. 651, 653 (2007); Richard A. Epstein, Property and Necessity, 13 Harv. J.L. & Pub. Pol’y 2, 6 (1990). The emergency or necessity exception to takings, moreover, enjoyed a renewal of scholarly interest in the aftermath of the economic crisis of the late ’00s, a crisis that involved a wave of nationalization of major companies whose failure posed systemic risks to the economy. E.g., Julia D. Mahoney, Takings, Legitimacy, and Emergency Action: Lessons from the Financial Crisis of 2008, 23 Geo. Mason L. Rev. 299, 299–300 (2016); Nestor M. Davidson, Nationalization and Necessity: Takings and a Doctrine of Economic Emergency, 3 Brigham-Kanner Prop. Rts. Conf. J. 187, 189 (2014). ↑

250. . See, e.g., TrinCo Inv. Co. v. United States, 722 F.3d 1375, 1377 (Fed. Cir. 2013) (addressing takings claim arising out of the U.S. Forest Service’s destruction of $6.6 million of timber to fight a forest fire). ↑
251. . See Neil Hanson, The Great Fire of London: In That Apocalyptic Year, 1666, at 131 (2002) (describing the fire’s devastation). For classic cases recognizing conflagration as an exception to takings, see, for example, Bowditch v. City of Boston, 101 U.S. 16 (1880) (finding Boston not liable for demolishing a building “at a place of danger in the immediate vicinity [of a fire], to arrest the spreading of the fire”); Mayor of New York v. Lord, 17 Wend. 285, 291 (N.Y. Sup. Ct.), aff’d 18 Wend. 126 (N.Y. 1837) (upholding the uncompensated destruction of property during the Great New York Fire of 1835). ↑
252. . See, e.g., TrinCo, 722 F.3d at 1377 (describing a fire intentionally set by the U.S. Forest Service on the plaintiff’s land). ↑
253. . E.g., Lee, supra note 249, at 400–01. ↑
254. . See id. at 399 (citing Juragua Iron Co. v. United States, 212 U.S. 297, 297 (1909)) (explaining the historical context of destroying property to prevent disease as exemplified by the United States military’s efforts to prevent the spread of yellow fever during the Spanish–American War). ↑
255. . Saxer, supra note 6, at 126–34. ↑
256. . See, e.g., United States v. Caltex (Phil.), Inc., 344 U.S. 149, 154–56 (1952) (denying compensation for destruction of oil facilities in the Philippines during World War II). ↑
257. . See Respublica v. Sparhawk, 1 U.S. (1 Dall.) 357, 362–63 (Pa. 1788) (denying compensation for property destroyed to forestall the British occupation of Philadelphia). ↑
258. . For a sample of commentary on this exception (which, for some reason, seems to inspire quite exuberant article titles), see, for example, Tristan Reagan, Comment, Dude, Where’s My House: The Interaction Between the Takings Clause, the Police Power, the Militarization of Law Enforcement, and the Innocent Third-Party Property Owner, 58 Tulsa L. Rev. 99, 100–104 (2022); Zachery Hunter, Note, You Break It, You Buy It—Unless You Have a Badge? An Argument Against a Categorical Police Powers Exception to Just Compensation, 82 Ohio St. L.J. 695, 696–701 (2021); Samuel D. Hodge, Jr., Will the Government Reimburse an Innocent Property Owner Whose Home Is Damaged During Police Activity?—Don’t Hold Your Breath!, 48 Real Est. L.J. 424, 424–25 (2020); see also Charles E. Cohen, Takings Analysis of Police Destruction of Innocent Owners’ Property in the Course of Law Enforcement: The View from Five State Supreme Courts, 34 McGeorge L. Rev. 1, 23–25 (2002); Claire Johnson Raba, Forfeiting Due Process: How Adjudicative Reform Fails Property Owners, 51 Fordham Urb. L.J. 299, 316–18 (2023) (discussing how forfeiture scholarship has moved away from a Takings Clause analysis). ↑
259. . 791 F. App’x 711 (10th Cir. 2019) (unreported). ↑
260. . Id. at 713. ↑
261. . Id. at 713, 717. ↑
262. . Johnson v. Manitowoc County, 635 F.3d 331, 333–34, 336 (7th Cir. 2011). ↑
263. . Eggleston v. Pierce County, 64 P.3d 618, 621–22 (Wash. 2003). ↑
264. . Zitter v. Petruccelli, 744 Fed. App’x. 90, 92–94 (3d Cir. 2018) (finding no taking of seized property where law enforcement was acting pursuant to a lawful search warrant). It is possible to find outlier counterexamples, where courts have rejected blanket non-liability. See, e.g., Wegner v. Milwaukee Mutual Ins. Co., 479 N.W.2d 38, 41–42 (Minn. 1991) (finding liability for damage to property under the state constitution and rejecting a public necessity exception). As Maureen Brady has cataloged, moreover, some courts have found liability in the context of law-enforcement property harms by sidestepping the Takings Clause and equivalent state constitutional provisions and instead looking to state constitutional “damagings” clauses. See Maureen E. Brady, The Damagings Clauses, 104 Va. L. Rev. 341, 394–95 (2018) (collecting cases). ↑
265. . E.g., AmeriSource Corp. v. United States, 525 F.3d 1149, 1153 (Fed Cir. 2008); Customer Co. v. City of Sacramento, 895 P.2d 900, 908 (Cal 1995). It bears noting that courts in this context at times confuse the concept of the police in colloquial terms and the “police power” in the sense of sovereign authority. All state-level regulation operates pursuant to the police power—as distinct, it is true, from the power of eminent domain—but that hardly marks out law enforcement as a domain. See Saxer, supra note 6, at 65 (discussing this framing).

     The Fifth Circuit recently rejected this reasoning, pointing out that the idea of a regulatory taking is that the state has exercised its police power, not the power of eminent domain, but has done so in ways that nonetheless give rise to takings liability. Baker v. City of McKinney, 84 F.4th 378, 383 (5th Cir. 2023). The court, however, then validated a police raid that decimated the claimants’ home under the necessity exception, finding the exception supported by “history, tradition, and historical precedent reaching back to the Founding.” Id. at 385–88; see also Slaybaugh v. Rutherford Cnty., Tennessee, 2024 WL 4020769, at *1, *4, *8 (6th Cir. Sep. 3, 2024) (denying compensation where the police fired thirty-five tear gas cans into the home of the mother of an accused murdered in an attempt to detain him and, in the process, caused $70,000 worth of damage by invoking a “search-and-arrest privilege” for “police use of force when carrying out a lawful arrest,” as “deeply rooted in the common law and our nation’s history”). ↑

266. . E.g., Bachmann v. United States, 134 Fed. Cl. 694, 696 (2017) (“When private property is damaged incident to the exercise of the police power, such damage is not a taking for the public use, because the property has not been altered or turned over for public benefit. Instead, both the owner of the property and the public can be said to be benefited by the enforcement of criminal laws and cessation of the criminal activity.”); Lawmaster v. Ward, 125 F.3d 1341, 1344–46, 1351 (10th Cir. 1997) (holding that a challenge to federal agents’ physically damaging property while executing a search warrant “fail[ed] to allege any facts showing how . . . property was taken for public use”).

     The Supreme Court may be inclined to revisit this line of reasoning in the near future. In a statement respecting the denial of certiorari in the Baker case from the Fifth Circuit, supra note 265, Justice Sotomayor, joined by Justice Gorsuch, wrote that the case “raises a serious question: whether the Takings Clause permits the government to destroy private property without paying just compensation, as long as the government had no choice but to do so.” Baker v. City of McKinney, 145 S. Ct. 11, *12 (mem.) (2024). ↑

267. . See Andrew Kent, The Pre-History of Modern Economic Sanctions, 40 Const. Comment. (forthcoming 2025) (manuscript at 118–19) (on file with the Texas Law Review) (describing the interplay between a sanctions statute and takings law). The nexus between national security and property law more generally is beginning to draw scholarly interest. E.g., Matthew S. Erie, Property as National Security, 2024 Wis. L. Rev. (forthcoming). But cf. id. at 299–301 (reviewing constitutional and other challenges to recent restrictions on foreign ownership, which notably do not include claims under the Takings Clause). ↑
268. . 48 F.3d 1575 (Fed. Cir. 1995). ↑
269. . Id. at 1581 (“A landlord leasing office space to organizations [such as the ones involved in the case] did so against the backdrop of the government’s foreign policy power.”). ↑
270. . 304 F.3d 1271 (Fed. Cir. 2002). ↑
271. . Id. at 1273–74. ↑
272. . Id. at 1274; see also id. at 1275 (“Economic sanctions would hardly be sanctions if the foreign targets of the sanctions could simply stand in line to be compensated for the losses those sanctions caused them.”). ↑
273. . Cf. Phillips v. Wash. Legal Found., 524 U.S. 156, 172 (1998) (holding that interest on legal funds held in trust accounts are the property of clients); Brown v. Legal Found., of Wash., 538 U.S. 216, 240 (2003) (“A law that requires that the interest on [clients’ legal] funds be transferred to a different owner for a legitimate public use . . . could be a per se taking.”). ↑
274. . See, e.g., County of Mobile v. Kimball, 102 U.S. 691, 702–03 (1881) (holding that imposition of property taxes to repay bonds could not constitute a taking and explaining that taxation and takings are inherently distinct). ↑
275. . See Eduardo Moisés Peñalver, Regulatory Taxings, 104 Colum. L. Rev. 2182, 2182 (2004) (discussing how attempts to reconcile the jurisprudence surrounding the takings and taxing powers yield a substantial category of “government actions that—though they would likely be deemed takings under current doctrine—cannot be distinguished from taxes”); Emily Eschenbach Barker, The California Resale Royalty Act: Droit De (Not So) Suite, 38 Hastings Const. L.Q. 387, 394 (2011) (commenting that there is “no definitive answer as to where one should draw the line between taxes and takings”); see also Walter J. Blum & Harry Kalven, Jr., The Anatomy of Justice in Taxation 4 (1973) (noting that the differences between takings and taxation are “more troublesome to isolate than one would expect”); cf. Calvin R. Massey, Takings and Progressive Rate Taxation, 20 Harv. J.L. & Pub. Pol’y 85, 104–05 (1996) (arguing that there are outer limits to the seemingly bright-line distinction between taxes and takings). ↑
276. . 570 U.S. 595 (2013). ↑
277. . Id. at 601. ↑
278. . See id. at 612. ↑
279. . Justice Kagan’s dissent in Koontz highlighted the difficulty in delineating clear lines between monetary conditions akin to improvement funds and taxation-related assessments, but the majority brushed aside the challenge, arguing without explanation that “teasing out the difference between taxes and takings is more difficult in theory than in practice.” Id. at 616. The issue returned in Sheetz v. County of El Dorado, 144 S. Ct. 893 (2024), a case challenging a traffic impact mitigation fee levied as a condition for a building permit that would, well, impact traffic. Id. at 897. In holding that legislative assessments of this sort are not categorically exempt from the Nollan/Dolan exactions framework, the Supreme Court unanimously sidelined the challenges that the holding posed for all manner of other similar public financing tools. Id. at 900. As it stands, then, the Court seems comfortable reaffirming a categorical distinction between taxing and takings, without confronting the edge cases that complicate the dichotomy. ↑
280. . See Shelley Ross Saxer, Forfeiture Takings, 80 U. Miami L. Rev. (forthcoming 2025) (surveying the history and constitutional landscape of forfeiture); see also Charles Doyle, Cong. Rsch. Serv., 97–139, Crime and Forfeiture (2023) (providing an overview of federal forfeiture law and resulting constitutional issues). Contemporary forfeiture has roots in English common law forfeiture actions for deodand, forfeiture for felony or treason, and statutory forfeitures. Calero–Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 680–82 (1974). Although these types of forfeitures were still used in England in the Founding Era, the U.S. legal system only adopted statutory forfeiture. Id. at 683.

     For more general background, see, for example, Alan Nicgorski, The Continuing Saga of Civil Forfeiture, the “War on Drugs,” and the Constitution: Determining the Constitutional Excessiveness of Civil Forfeitures, 91 Nw. U. L. Rev. 374 (1996). ↑

281. . 516 U.S. 442 (1996). ↑
282. . Id. at 443. ↑
283. . Id. ↑
284. . Id. at 443–44. ↑
285. . Id. at 443. ↑
286. . Id. at 452. ↑
287. . Bennis v. Michigan, 516 U.S. 442 (1996). ↑
288. . 21 U.S. (8 Wheat.) 543 (1823). ↑
289. . Id. at 547–48, 560. ↑
290. . 348 U.S. 272 (1955). ↑
291. . Id. at 273, 290–91; see also Joseph William Singer, Sovereignty and Property, 86 Nw. U. L. Rev. 1, 17–18 (1991); Nell Jessup Newton, Federal Power Over Indians: Its Sources, Scope, and Limitations, 132 U. Pa. L. Rev. 195, 247–53 (1984).

     Although the Supreme Court denied constitutional compensation in Tee-Hit-Ton, Congress later enacted the Alaska Native Claims Settlement Act, providing Alaska Natives roughly $962 million in compensation for the confiscation. 43 U.S.C. § 1601 et seq.; Cohen’s Handbook of Federal Indian Law § 2.11[6], at 136 (Nell Newton et al. eds. 2024 ed.). This highlights that the legal system at times provides avenues of potential compensation beyond the constitutional floor. ↑

292. . 544 U.S. 528 (2005). ↑
293. . Id. at 539–45. As Thomas Merrill has noted, property is a malleable concept that can mean different things in different constitutional and non-constitutional contexts. See generally Merrill, supra note 14. ↑
294. . E.g., Austin v. United States, 509 U.S. 602, 622 (1993). ↑
295. . Cedar Point Nursery, 141 S. Ct. at 2079 (“government searches that are consistent with the Fourth Amendment and state law cannot be said to take any property right from landowners”). ↑
296. . See, e.g., Mystica M. Alexander, California – Land of “Lawless Taxation” and the Midnight Special: Outlier or Leader in a Growing Trend?, U.N.H. L. Rev. 219, 242 (2014) (noting the Supreme Court’s reluctance to grant certiorari on challenges to retroactive takings); see also Wayne A. Logan, “Democratic Despotism” and Constitutional Constraint: An Empirical Analysis of Ex Post Facto Claims in State Courts, Wm. & Mary Bill Rts. J. 439, 504 n.415 (2004) (noting that Justice Thomas has expressed interest in reconsidering whether retroactive laws constitutional under the Takings Clause are unconstitutional under the Ex Post Facto Clause). This interplay can be traced all the way back to Calder v. Bull, 3 U.S. 386, 394 (1798) (“The restraint against making any ex post facto laws was not considered, by the framers of the constitution, as extending to prohibit the depriving a citizen even of a vested right to property; or the provision, ‘that private property should not be taken for public use, without just compensation,’ was unnecessary.”). ↑
297. . See supra text accompanying notes 214–224. ↑
298. . Cedar Point Nursery, 141 S. Ct. at 2078 (noting that isolated trespasses do not constitute takings); see also Fennell, supra note 246, at 19–20 (discussing the torts-takings distinction). ↑
299. . See, e.g., Lawrence Rosenthal, A Theory of Governmental Damages Liability: Torts, Constitutional Torts, and Takings, 9 U. Pa. J. Const. L. 797, 821–22 (2007) (contrasting governmental liability for takings and governmental liability for common law and constitutional torts). ↑
300. . See Fennell, supra note 246, at 3. ↑
301. . For details on this rhetorical structure, see supra subpart I(A). ↑
302. . See Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1028 (1992) (asserting that “[w]here ‘permanent physical occupation’ of land is concerned, we have refused to allow the government to decree it anew (without compensation), no matter how weighty the asserted ‘public interests’ involved”) (citation omitted); Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 430 (1982) (declaring that “permanent occupations of land by such installations as telegraph and telephone lines, rails, and underground pipes or wires are takings even if they occupy only relatively insubstantial amounts of space and do not seriously interfere with the landowner’s use of the rest of his land”); Cedar Point Nursery, 141 S. Ct. at 2072 (“The access regulation appropriates a right to invade the growers’ property and therefore constitutes a per se physical taking.”). ↑
303. . See Mulvaney, supra note 42, at 153–54 (raising questions regarding classifications of Loretto as a categorical rule). ↑
304. . See Cedar Point Nursery, 141 S. Ct. 2063, 2076 (citing Heart of Atlanta Motel, 379 U.S. at 261). In public accommodations cases, a supposed per se liability rule venerating exclusionary interests butts heads with a supposed per se non-liability rule, and, inevitably via some implicit weighing of the values underlying these supposed rules, the latter has won out. ↑
305. . Fennell, supra note 246, at 3. ↑
306. . See Cedar Point Nursery, 141 S. Ct. 2063, 2076–79 (contending that “a host of state and federal government activities involving entry onto private property” are not in danger of triggering takings liability despite the Court’s holding that the access regulation at issue amounted to a per se physical taking). ↑
307. . Singer, Rule of Reason, supra note 1, at 1374. ↑
308. . Nollan v. Cal. Coastal Comm’n, 483 U.S. 825, 831, 834–35 (1987). ↑
309. . Id. at 847 (Brennan, J., dissenting). In a related vein, defining the predicates to takings in categorical terms and then providing exceptions to such per se rules puts pressure on the exceptions. See, e.g., Robert L. Glicksman, Swallowing the Rule: The Lucas Background Principles Exception to Takings Liability, 71 Fla. L. Rev. F. 121, 126 (2020) (emphasizing the frequency at which lower courts have turned to background principles to immunize regulations from a total takings claim under Lucas). Similar pressure to fit rights to enter under one of the many exceptions the Supreme Court acknowledged to its nominally per se rule in Cedar Point Nursery is inevitable. ↑
310. . Ill. Cent. R.R. Co. v. Illinois, 146 U.S. 387, 452 (1892). ↑
311. . Matthews v. Bay Head Improvement Ass’n, 471 A.2d 355, 365 (N.J. 1984), cert. denied, 469 U.S. 821 (1984). ↑
312. . Nollan, 483 U.S., at 829. ↑
313. . Cf. Burton v. Clark Cnty, 958 P.2d 343, 354, 357 (Wash. Ct. App. 1998) (deeming Nollan and Dolan violated where a town could not prove that the emergency road for which it demanded a dedication would be completed in the “foreseeable future”). ↑
314. . Singer, Rule of Reason, supra note 1, at 1385 (“Judges do apply rules, but when the scope of the rule is in question, rule application requires judgment.”); Cass R. Sunstein, Problems with Rules, 83 Calif. L. Rev. 953, 985 (1995) (“The very fact that a rule has at least one exception (as nearly all rules do), and the very fact that the finding of this exception is part of ordinary interpretation, means in that in nearly every case a judge is presented with the question of whether a rule is reasonably interpreted to cover the circumstances at issue.”). ↑
315. . 708 F.3d 1340 (4th Cir. 2013). ↑
316. . 134 Fed. Cl. 619 (2017), aff’d 942 F.3d 1312 (Fed. Cir. 2019). ↑
317. . Neither case was decided on the merits. Casitas was ultimately dismissed on ripeness grounds. Casitas Mun. Water Dist., 708 F.3d at 1358–60. In Baley, an appellate panel ruled that the water user’s claimed water rights were inferior to water rights federally reserved for Native American tribes. Baley v. United States, 942 F.3d 1312, 1341 (Fed. Cir. 2019). ↑
318. . Casitas Mun. Water Dist., 708 F.3d at 1344; Baley, 134 Fed. Cl. at 672–73. ↑
319. . Kennedy, supra note 4, at 1695–96 (internal quotations omitted). ↑
320. . Singer, Rule of Reason, supra note 1, at 1377–78 (asserting that mechanized rules “require actors to be attentive to what is prohibited, but standards require actors to engage in moral reflection to determine whether they could justify their actions to those affected by them or to those empowered to judge them”). ↑
321. . See supra notes 48–52 and accompanying text. ↑
322. . Kaiser Aetna v. United States, 444 U.S. 164, 166–69 (1979). ↑
323. . Scranton v. Wheeler, 179 U.S. 141, 162 (1900). ↑
324. . Kaiser Aetna, 444 U.S. at 178–80. ↑
325. . The Supreme Court’s decision in Pruneyard Shopping Center v. Robins, 447 U.S. 74 (1980) may offer the most intriguing illustration. The decision is commonly cited as declining to apply the per se takings rule for physical invasions in favor of Penn Central’s ad hoc analysis. E.g., Bethany R. Berger, Property and the Right to Enter, 80 Wash. & Lee L. Rev. 71, 127 (2023). However, Pruneyard also could be understood as declining to apply the per se non-takings rule that immunizes access regulations from takings challenges when applied to commercial properties that are open to the public and, instead, rejecting the claim for compensation under Penn Central. ↑
326. . See Margaret Jane Radin, Reconsidering the Rule of Law, 69 B.U. L. Rev. 781, 817 (1989) (“[J]udges are an interpretive community conscious of their obligation to act as independent moral choosers for the good of society, in light of what that society is and can become . . . . [T]here are no rules that can be understood apart from their context[.]”). ↑
327. . See, e.g., Stewart E. Sterk, Property Rules, Liability Rules, and Uncertainty About Property Rights, 106 Mich. L. Rev. 1285, 1286 (2008) (“The scope of many property rights is not self-evident.”); Sunstein, supra note 314, at 961 (“Rules do not, and indeed cannot, contain all of the instructions necessary for their own interpretation.”); Karl Llewellyn, The Bramble Bush 65–66 (1930) (explaining that application of a rule is circumstance-sensitive). Mark Kelman goes so far as to say that “all cases are hard cases.” Mark Kelman, A Guide to Critical Legal Studies 23 (1987) (emphasis added). ↑
328. . Singer, supra note 1, at 1427; Mulvaney, Walling Out, supra note 20, at 10. ↑
329. . See, e.g., Kathleen M. Sullivan, Foreword: The Justices of Rules and Standards, 106 Harv. L. Rev. 22, 54 (1992) (“[T]o avoid injustice at the margin, legislatures and courts simply invent end-runs around [rules].”); Sunstein, supra note 314, at 957 (“Often rules will be too crude, since they run up against intransigent beliefs about how particular cases should be resolved.”). ↑
330. . In property theory more generally, there is a rich literature contrasting monism, the idea that property norms and doctrines can be explained by singular, over-arching justifications, such as economic efficiency or utilitarianism, and pluralism, which recognizes a multiplicity of often conflicting normative frames at play. E.g., Davidson, supra note 182, at 1637–39. Stephen Munzer, for example, has argued that three justificatory frames—utility and efficiency, justice and equality, and desert based on labor—must be balanced in property. Stephen R. Munzer, A Theory of Property 3 (1990). Hanoch Dagan, by contrast, has offered what he described as a “structurally pluralist” account of property (and private law more generally) that provides legal categories that correspond to multiple values to be promoted through constitutive rules. Hanoch Dagan, Essay, Pluralism and Perfectionism in Private Law, 112 Colum. L. Rev. 1409, 1425–26 (2012).

     The discussion in this section does not weigh in on the deeper superstructure of value pluralism in property theory but rather deploys pluralism in a more descriptive sense. That is, as the section elaborates, that when the legal system categorically denies compensation, it does so based on an array of justifications. ↑

331. . This is not to say that the justifications at issue for any given non-takings rule are always clear. While courts and other legal actors at times articulate the bases for finding no right to compensation per se, they often are opaque about the normative considerations underlying that conclusion, thus requiring some interpretation. Moreover, as noted, to mark these explicit and implicit justifications is not to endorse them—some may be normatively attractive, some may raise conversely fundamental concerns, and some are best considered primarily utilitarian. ↑
332. . See supra subpart II(A). ↑
333. . See supra section II(B)(1). ↑
334. . See, e.g., Bowditch v. City of Boston, 101 U.S. 16, 18 (1880) (noting that at common law, “every one had the right to destroy real and personal property, in cases of actual necessity, to prevent the spreading of a fire, and there was no responsibility on the part of such destroyer, and no remedy for the owner”) (quoting The King’s Prerogative in Saltpetre, (1606) 77 Eng. Rep. 1295 (K.B.); 12 Co. Rep. 13)).

     Richard Epstein has translated this consequentialism into the language of holdouts and transaction-cost barriers, justifying the necessity exception as a response to market failure. See Epstein, supra note 249, at 7. Moreover, although this does not shed much light on justifications as such, courts and some commentators have explained necessity as a natural law concept. See Lee, supra note 249, at 438 (describing precedents that justify obviating the government’s duty to compensate for takings required because of necessity in terms of a “natural right”). ↑

335. . Lee, supra note 249, at 410–15, 415–20 (discussing and critiquing these justifications); see also Kuo, supra note 249, at 137–40 (reviewing consequentialist claims for necessity). ↑
336. . See supra section II(A)(3). ↑
337. . See supra subsection II(B)(2)(c). ↑
338. . In a related vein, per se non-takings highlights the extent to which the substance of takings jurisprudence is inevitably shaped by interaction with other constitutional values. Cf. Jason Mazzone & Cem Tecimeri, Interconstituitonalism, 132 Yale L.J. 326, 334–35 (2022) (noting that “intraconstitutional” interpretation “generat[es] constitutional meaning by juxtaposing and analyzing different provisions within a single constitution[]”). When the Supreme Court decides that a given property interest is better addressed through due process and norms against retroactivity, the constitutional prohibition on cruel and unusual punishment or excessive fines, or even common law remedies in areas such as tort law, those exceptions reflect the primacy of balancing public and private interests through alternative channels that implicitly reflect their own internal judgments about the inappropriateness of using compensation as a remedial lens. Thus, to an extent not always fully appreciated, takings jurisprudence even at its most rule-like still interacts with—and cannot avoid interacting with—other constitutional and quasi-constitutional values and moral commitments. ↑
339. . Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1016 (1992). ↑
340. . Cedar Point Nursery v. Hassid, 141 S. Ct. 2063, 2072–74 (2021). ↑
341. . See supra subpart I(B). ↑
342. . See Sullivan, supra note 329, at 61 (explaining that the “distinctions between rules and standards . . . mark a continuum, not a divide”). Cass Sunstein describes the rules–standards continuum as involving progressively more discretionary steps from untrammeled discretion (at one pole) to “rules with excuses” to presumptions to factors to standards to guidelines (at the other pole). Sunstein, supra note 314, at 960–66. ↑
343. . See text accompanying supra note 18. ↑
344. . Cf. J. Peter Byrne, Ten Arguments for the Abolition of the Regulatory Takings Doctrine, 22 Ecology L.Q. 89, 91–96 (1995) (critiquing regulatory takings on formalist grounds). ↑