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John Martinez

Abstract

Takings doctrine is a mess. Let's just accept that and establish specialized federal and state "takings courts" to adjudicate takings claims. Takings claims arise when governmental conduct is alleged to detrimentally affect private property. Adjudication of takings claims may initially seem straightforward: the Fifth Amendment's Just Compensation Clause, as well as analogous state constitutional provisions, plainly provide that the government shall not take private property for public use without just compensation. In 1978, the United States Supreme Court confessed that takings analysis is hopelessly ad hoc. Decades later, in 2005, the Court abrogated a test for takings that it had applied for twenty-five years. Some scholars have even resigned themselves to embracing vagueness as a virtue in takings jurisprudence. They concede that "bounded uncertainty" is the best we can expect. Because takings doctrine is in such disarray, it is not surprising that adjudication of takings claims in state and federal courts is also a sorry sight. Courts seem to lose track of even the most basic legal principles when adjudicating takings claims. Courts are also confused at the very basic level of whether the mens rea of the governmental agency or official involved matters. Some courts insist that only intentional conduct aimed at acquisition of property can amount to a taking. Many courts conclude that at least negligent governmental conduct is required before a taking can be found, and consequently, that non- negligent behavior by the government that causes harm to private property owners is not actionable. However, takings are strict liability claims: intentional, reckless, or negligent conduct need not be shown in order to impose liability. But this is not "yet another takings article" seeking to achieve greater certainty and coherence in the field of takings jurisprudence. Instead, this Article suggests that we should start from the assumption that takings law is incoherent, complex, and intractable, and that we should establish specialized federal and state takings courts for adjudicating such claims. Specialized courts have long been a hallmark of American jurisprudence. We have specialized courts for many particular areas of law, including family law, small claims, and landlord-tenant disputes. Specialized federal and state takings courts would be consistent with that tradition of establishing special tribunals for specialized areas of law. But we should not simply establish new federal and state takings courts without a metric for evaluating their success or failure. Thus, once the need for a new system for adjudicating takings claims is acknowledged, we should create a critical analytical framework to evaluate the ultimate success or failure of such new specialized federal and state takings courts.

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