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The Eagle Theory, Thomas W. Merrill
The Eagle Theory, Thomas W. Merrill
Faculty Scholarship
This Article evaluates three interpretations of the Takings Clause capable of generating a regulatory takings doctrine. The first, the Epstein interpretation, puts primary emphasis on what it means to provide “just compensation” for takings; the second, the Penn Central interpretation, centers on what it means to “take” property; the third, which I call the Eagle theory, in honor of Steven Eagle, this year’s Brigham-Kanner prize recipient, focuses on when the government has taken “private property.” The Article argues that the Eagle theory has the most plausible basis in the original understanding of the Takings Clause, rests on a theory about …
Choice Of Law In Takings Cases, Thomas W. Merrill
Choice Of Law In Takings Cases, Thomas W. Merrill
Faculty Scholarship
This Article considers what law should apply in resolving subsidiary questions that arise in the course of deciding takings cases under federal constitutional law. It argues that there are three choices: federal constitutional law, state law, or a federal-patterning definition that lays down certain general parameters as a matter of federal constitutional law but otherwise follows state law if it is consistent with these parameters. The article illustrates these choices by considering a recent Supreme Court decision, Murr v. Wisconsin, which held that the horizontal dimensions of a “parcel of land” should be determined, for takings purposes, as a …