Dueling Denominators and the Demise of Lucas

In Murr v. Wisconsin, the Supreme Court outlined a process for ascertaining the denominator in takings cases – an issue that arises both with respect to Penn Central takings claims and Lucas takings claims. The underpinnings of Penn Central claims and Lucas claims are not identical; Penn Central’s primary concern is assuring fairness to landowners, while the focus of Lucas is on restricting government efforts to bypass the condemnation process. Although this difference in focus might suggest a difference in appropriate denominator, the Court’s multi-factor balancing approach apparently applies to all takings claims. Although the Court’s approach is consistent with Penn Central objectives, it is less consistent with Lucas objectives, and reduces the likelihood that Lucas claims will be successful. At the same time, the Court’s opinion, if taken literally, appears to break both with basic federalism principles and with the Court’s own doctrine by rejecting state law as the source for the takings denominator. Closer analysis reveals, however, that the factors outlined by the Court remain closely tied to state law, resulting in less of a break with principle and precedent than suggested by Chief Justice Roberts’ dissent.