Reconstructing The Takings Doctrine By Redefining Property and Sovereignty

In 1987, the Supreme Court decided three cases involving "takings" challenges to governmental exercise of the power to control land use. This trilogy of cases affirmed the continuing validity of a three-part analytical model in addressing the takings problem: (1) is private property involved; (2) has governmental action so affected it as to require a remedy; and (3) what remedy should be provided? This Article critically examines that model and argues that the first two questions are fundamentally indistinguishable and that to treat them as distinct inquiries is unworkable. The Article then proposes a functional approach under which individuals are protected from governmental regulation only insofar as the reasons for having property are preserved, and then concludes by identifying the questions that must be addressed before the takings doctrine can be reconstructed along functional lines.