Reconceptualizing Property Law's Background Principles in Takings Law

Authors

Timothy M. Mulvaney, Texas A&M University School of LawFollow

Document Type

Article

Publication Date

12-2024

Journal Title

Minnesota Law Review

ISSN

0026-5535

Abstract

Both libertarians and progressives celebrated the result in Tyler v. Hennepin County. This Article asserts that this unified celebration has overshadowed the extent to which the Supreme Court’s reasoning calls into question even our most foundational assumptions about the meaning of property and the takings protections the constitution affords to it. Followed to its literal end, Tyler remarkably suggests that owners may well need to ground their expectations in the property laws endorsed by a majority of states rather than in the laws of their own state.

Suspicious that the Court intended such a revolutionary upheaval of the state variations that have characterized our federalist system for more than two centuries, the Article contends that Tyler is better interpreted as an epic failure in judicial transparency: The opinion reflects a sly reticence to acknowledge the reality that resolving competing claims to property demands moral judgment regarding the background principles of property law. In following this deceptive course, Tyler invites a race to legislative homogeneity and erects a dangerous barrier to states’ abilities to innovate in the face of evolving social, economic, and environmental conditions.

First Page

689

Last Page

735

Num Pages

47

Volume Number

109

Issue Number

3

Publisher

University of Minnesota Law School

Recommended Citation

Timothy M. Mulvaney, Reconceptualizing Property Law's Background Principles in Takings Law, 109 Minn. L. Rev. 689 (2024).
Available at: https://scholarship.law.tamu.edu/facscholar/2155

File Type

PDF