Murr v. Wisconsin: How Does the Supreme Court Define Property in Takings Litigation?

Claims for just compensation under the Fifth Amendment Takings Clause (and its state law counterparts), which are sometimes called “inverse condemnation” claims, present a variety of complex and fact-intensive issues. One of the most fundamental is how to define the “property” that a court should consider when determining whether a compensable taking has occurred. Surprisingly, until last June’s decision in Murr v. Wisconsin the U.S. Supreme Court had never addressed this important question. Although the Court had said several times that in addressing takings claims courts must consider “the parcel as a whole,” the meaning of that phrase remained unclear, and lower courts had struggled to define it. In Murr, the Court finally provided significant guidance regarding how to define the property that the Takings Clause protects. But it remains to be seen whether lower courts find that guidance sufficient to clarify the rather muddled case law that had built up in the years preceding Murr.

Attorney Jerry Stouck is a nationally-recognized expert in Fifth Amendment takings cases. In addition to litigating such cases, he frequently speaks and writes on takings and other property rights issues. The federal government asked the Supreme Court to hear one of his takings cases along with Murr. Although the Court eventually denied cert. in that case, its long history – and relationship to the property definition issues the Court addressed in Murr – has given Jerry the opportunity to analyze and reflect on Murr’s  significance to the overall body of takings jurisprudence. He will provide not only an informed understanding of the Murr decision, but also a critical look at what Murr leaves open for further litigation in this complicated and evolving area of law.

Learning Objectives:

1. Identify the “parcel as a whole” or “relevant parcel” issue, and why it is so important in takings cases, particularly those involving real property
2. Review the several previous Supreme Court decisions that have touched on this important issue, but have served only to obscure (rather than promote) its resolution
3. Appreciate the varied and conflicting approaches that lower courts have taken to the relevant parcel issue
4. Obtain a thorough understanding of the decision in Murr v. Wisconsin, as well as the dissent’s criticisms of it
5. Recognize the issues that Murr leaves open for further litigation as courts attempt to apply Murr in diverse situations