Black-letter propositions
- 01
Permanent physical occupation and regulations eliminating all economically beneficial use are categorical takings subject to narrow background-principles exceptions.
- 02
Other regulatory takings use a fact-specific analysis emphasizing economic impact, investment-backed expectations, and character of government action.
- 03
Land-use exactions require essential nexus and rough proportionality to project impacts, including many monetary demands tied to permitting.
- 04
Property is defined by independent law; compensation rather than invalidation is the usual remedy for a taking.
- 05
State impairment of contracts receives heightened examination when substantial, especially for the state's own obligations.
Use this attack sequence under time
Frame the issue
Identify the property interest and government action.
Resolve the next checkpoint
Choose physical, total-use, Penn Central, exaction, or other doctrine.
Resolve the next checkpoint
Analyze parcel and background limitations.
Finish the conclusion
Determine public use and compensation remedy.
Common wrong turns
- A regulation reducing value is not automatically a taking.
- Property need not be real estate.
- A public-use challenge is difficult when the taking is rationally related to a public purpose.
Worked example
A permit is conditioned on dedicating a public bike path unrelated to the development's traffic effects.
The exaction likely lacks the essential nexus between the condition and the project's identified impact. Even a useful public path cannot be demanded through permitting without the required connection and proportionality.
Practice this topic
Takings
The Fifth Amendment requires just compensation when the government takes private property. Cornell describes a taking as occurring when government seizes private property for public use, which may be a physical taking or a regulatory taking. Compensation is typically the fair market value, and courts interpret public use broadly, as in Kelo v. City of New London.
Cornell lists cases: Loretto, a permanent physical occupation is a taking; Lucas, a regulation eliminating all economically beneficial use is a taking unless justified by background principles of property or nuisance law; and Nollan and Dolan, a regulation is a taking if it requires exactions lacking a connection or proportionality to a legitimate public purpose.
The Contracts Clause
Article I, Section 10 says no State shall pass any bill of attainder, ex post facto law or law impairing the obligation of contracts. It binds states, not the federal government, and it sits in the same section as limits on state treaties, coinage and titles of nobility.
Takings analysis and the Contracts Clause both test government action against private economic expectations, so identify whether the actor is a state and whether the claim concerns property or a contract.
Cornell also notes that takings extend beyond land to easements, personal property, trade secrets and contract rights, and that compensation need not include value derived from government-created benefits. Ask what property interest was taken, whether the taking was physical or regulatory, and whether the government's exactions had the required connection and proportionality.
Frequently asked questions
What is the controlling rule for takings, exactions, and contracts?+
A taking may be physical, total, ad hoc regulatory, or an unconstitutional exaction, and just compensation is ordinarily the constitutional remedy.
How should I analyze takings, exactions, and contracts on the bar exam?+
Identify the property interest and government action. Analyze parcel and background limitations. Determine public use and compensation remedy.
What does the Fifth Amendment require when property is taken?+
Just compensation when the government takes private property for public use, which Cornell says is typically measured by fair market value.
What is a regulatory taking?+
A government restriction on property use so severe that it becomes the equivalent of a physical seizure, according to Cornell's summary.
What does Lucas hold according to Cornell?+
A regulation that eliminates all economically beneficial use of land is a taking unless justified by background principles of property or nuisance law.
What is the Nollan-Dolan test?+
A regulation is a taking if it requires exactions lacking a connection or proportionality to a legitimate public purpose.
What does the Contracts Clause say?+
No State shall pass any law impairing the obligation of contracts, according to Article I, Section 10.
Primary sources
Cornell LII Wex: takings↗Cornell LII: U.S. Constitution, Fifth Amendment↗Cornell LII: U.S. Constitution, Article I↗Governing text for takings, exactions, and contracts
Constitution of the United States, full text (National Archives) ↗