Document Type

Article

Publication Title

Saint Louis University Law Journal

Abstract

Last term the Supreme Court returned to the field of regulatory takings and bolstered the constitutional rights of property owners whose land is subject to environmental regulation. It also handed Property teachers a gift. In Palazzolo v. Rhode Island, the Court struck down a state court’s holding that a property owner who acquired land after the enactment of a land use regulation cannot claim that the regulation effects an unconstitutional “taking” of his property. According to the Court, a state may not automatically prevent post-enactment acquirers of property from pursuing takings claims because they “purchased or took title with notice of the limitation.” The takings clause is more than a notice provision. The temporal relationship between the regulation’s enactment and an owner’s acquisition of property does not determine whether he can claim that the regulation deprived him of his property. In other words, the state is not completely free to alter constitutionally-protected property rights prospectively. In the circumstances of Palazzolo, the holding is not controversial. The problem is that the Supreme Court previously directed state courts to define those constitutionally-protected property rights by using the state’s own “background principles of nuisance and property law,” and in Palazzolo the Court casts doubt on a state’s power to alter those background principles at all. It is sometimes said that we have a common law constitution, but not since the heyday of Classical Legal Thought a century ago has it been a doctrinal imperative. Which is to say that the common law of property, as subject matter and method, should enjoy renewed interest among practitioners, scholars and students.

First Page

713

Volume

46

Publication Date

2002

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