The decision in Murr v. Wisconsin is a revolutionary one in the world of regulatory takings cases. As Richard Epstein said in his article on Murr, the primary objective of the takings clause, is to figure out a way to narrow the terms so that there is not a restraint on the actions of state and federal governments. In Murr, Justice Kennedy writing for the majority adopted what he considered as a desirable approach for deciding on the denominator problem. Because there has not been a single, exclusive test to determine the denominator, Justice Kennedy created a fact specific inquiry approach to solve the issue. This however, will have a negative impact on landowners raising regulatory takings claims, with the result often falling favorably in …show more content…
The dissent was strong because it criticized the majority’s test in considering the effect of the regulation not once, but twice in regulatory takings cases. This test is far too extreme and creates unnecessary litigation to define the meaning of “private property” under a takings analysis. In determining the size and range of a relevant parcel, Justice Roberts was correct to rely on state law to determine the distinct boundaries of land and parcels. Why should the court have to subject itself to the fact-specific inquiry that the majority adopted? The test considers “the treatment of the land under state and local law, the physical characteristics of the land, … the prospective value of the regulated land,” as well as the reasonable expectations of the property owner. Those considerations will be addressed in a takings analysis outside determining what is defined as the parcel of land relevant to the claim. There is no need, other than to create a more difficult scenario for landowners to prevail in their takings claims, to adopt a test that is this repetitive in nature. It is not as if those considerations will not be addressed, as Justice Roberts mentioned, they will be addressed in the takings analysis and adjacent parcels of land will have an impact on those …show more content…
Farber revealed that one of the major considerations for the Murr majority was the denominator problem, and that it was difficult to define what property should be included in the valuation. The practical significance of the Murr decision that Farber divulged on, was that the decision would significantly increase the chance of the government prevailing against takings claims. This is not a favorable result by any means, and the Court was aware of the effect this case would have on other takings cases. Farber included the opinion of Justice Scalia which is a good contrast to the decision in Murr. Scalia advocated for a strict, almost a bright line rule that if the government is interfering with the use of private land, there has been a taking. However, such a rule may be too harsh. Farber considered that instead Penn Central’s analysis of what constitutes a taking should be reevaluated. Though such a move cannot be made by the courts at this time, the decision in Murr is still not favorable. Murr has the effect of almost guaranteeing success for the government and could lead to inconsistent results on takings cases down the line. Such inconsistent results could arise when, as Farber mentioned, identifying categories of regulation requiring special