Judicial Takings and the Course Pursued

Note — Volume 90, Issue 5

90 Va. L. Rev. 1487
Download PDF

This Note will argue that the constitutional holding of Erie Railroad Co. v. Tompkins requires that the takings protections of the Federal Constitution apply to state judge-made law as well as state statutes and administrative regulations. It will contend that Erie requires that the federal government not interfere with state separation-of-powers decisions, and that state courts be presumed to have the authority to make real law, binding as statute, on behalf of the states. Imbued with such power, in making law, state courts are at least capable of offending the takings protections of the Constitution. For the federal government to ignore such a capability would not only allow easy circumvention of the Takings Clause but also introduce an impermissible “exogenous factor into a state’s choice of the proper branch to make changes in property law” in violation of Erie’s constitutional holding. Though a daunting charge, answering the background-principles question is inherent in the complex enterprise of one sovereign policing changes in another sovereign’s laws. So long as state courts wield lawmaking power, exercising the will of the state by articulating new legal rules, and so long as states are prohibited from changing legal rules in ways that take private property for public use without just compensation, federal courts must take up the task.

Click on a link below to access the full text of this article. These are third-party content providers and may require a separate subscription for access.

  Volume 90 / Issue 5  

Corporations, Society, and the State: A Defense of the Corporate Tax

By Reuven S. Avi-Yonah
90 Va. L. Rev. 1193

Through the Looking Glass: The Confederate Constitution in Congress: 1861-1865

By David P. Currie
90 Va. L. Rev. 1257

Awards for Pain and Suffering: The Irrational Centerpiece of Our Tort System

By Paul V. Niemeyer
90 Va. L. Rev. 1401

Judicial Takings and the Course Pursued

By W. David Sarratt
90 Va. L. Rev. 1487