Murr v Wisconsin and the Future of Takings Law

Almost a century ago, Justice Holmes famously declared that a regulation becomes a taking of property if it goes too far. Judges and scholars have struggled ever since to give meaning to this test. Murr v Wisconsin is the most recent Supreme Court decision wrestling with this issue. This 2017 decision seems to have been something of a sleeper, because it is lacking in dramatic facts or stirring rhetoric.

But it actually has broad implications for the rights of property owners and the scope of government regulatory powers. Murr sends a strong signal that the property rights crusade led by Justice Antonin Scalia has stalled and that the Court is largely content with the current shape of takings doctrine.In the dismayed words of one advocate of stronger property rights, Murr “further undermined the already enfeebled constitutional rights enjoyed by property owners against regulatory excess.”