Takings

This page includes a writing template for analyzing this topic and usage notes to guide its application. In general, the template is designed to serve as a starting point for your analysis. It should be adapted to fit the specific facts of your case and your professor’s preferences.

Writing Template

Issue

I: The issue is whether the state action violated the Takings Clause.

Analysis

R: The Takings Clause, derived from the Fifth Amendment, prohibits (1) private property from being (2) taken for (3) public use without (4) just compensation. The Fourteenth Amendment extends this prohibition to state and local governments.

1. Private Property

R: To challenge a government action as an unconstitutional taking, the claimant must establish a property interest. Property interests include real property, tangible personal property, and intangible property, such as contract rights, patent rights, and trade secrets. These interests also encompass easements, leasehold interests, and liens.

A: Here, [apply rule to facts].

C: Therefore, the claimant [has/does not have] a protectable property interest.

2. Taking

R: A “taking” under the Fifth Amendment refers to a government action that interferes with private property rights to such an extent that it requires compensation. Takings typically occur when the government (1) seizes property, (2) damages or destroys property, (3) imposes regulations that adversely affect property rights, (4) re-characterizes private property as public, or (5) exacts promises from property owners in exchange for permits or other approvals.

A: Here, the type of taking is [identify type of taking: seizure for government use, damage or destruction, re-characterization, regulation, or exaction] because [support with facts].

a. [Insert Type of Taking]

R: The specific standard for evaluating this type of taking is [insert appropriate test from the list below].

A: Here, [apply the specific standard to the facts].

C: Therefore, government action [is/is not] taking that [satisfies/does not satisfy] the public-use requirement.

3. Public Use

R: The public use requirement is satisfied if the government action is rationally related to a legitimate public purpose, such as such as economic development, public safety, public health, or general welfare. Further, in regulatory taking, courts give significant deference to the legislature’s determination of public purpose. The taking will generally be upheld unless it is clearly shown to serve a purely private benefit or lacks any rational connection to a legitimate public purpose.

A: Here, [apply rule to facts].

C: Therefore, the taking [was/was not] for public use.

4. Just Compensation

R: If a taking has occurred, the government must provide “just compensation,” defined as the fair market value of the property at the time of the taking. This is determined objectively based on the property’s highest and best use.

A: Here, [apply rule to facts, e.g., analyze the valuation of the property and whether the compensation offered matches its fair market value].

C: Therefore, just compensation [was/was not] provided.

Conclusion

C: Therefore, the government’s search [was/was not] unreasonable (i.e., a Fourth Amendment search).

Type of Takings

Seizure

R: When property is taken by seizure, whether for government use or transferred to a private party, it constitutes a taking if the action is rationally related to a conceivable public purpose.

Damage or Destruction of Property

R: When the government damages or destroys property or interferes with property rights, it constitutes a taking. The destruction or interference does not need to directly benefit the government to qualify as a taking.

Recharacterization

R: When the government seizes property, such as financial assets during a trial, and recharacterizes the property as public property, it constitutes a taking.

Regulation

R: Generally, governmental regulations that adversely affect a person’s property interest (even if acquired after the regulation) do not constitute takings. However, A regulation clearly constitutes a taking when (1) it results in a permanent physical occupation of the property by the government or a third party, regardless of the public interest served, or (2) it results in a permanent and total loss of the property’s economic value. However, a regulation that causes a significant decline in property value does not necessarily constitute a taking.

R: Further, (3) under Penn Central, a regulation may rise to the level of a taking if: (a) the economic impact of the regulation on the property owner, (b) the extent to which the regulation interferes with the owner’s reasonable, investment-backed expectations regarding the use of the property, and (c) the character of the regulation, including the degree to which it benefits society, how it distributes burdens and benefits among property owners, and whether it violates essential attributes of property ownership, such as the right to exclude others from the property.

Exaction

R: Exactions do not violate the Takings Clause if (1) there is an essential nexus between the legitimate state interests and the obligation imposed on the property owner, and (2) there is rough proportionality between the obligation imposed on the property owner and the impact of the proposed development. Rough proportionality exists when the obligation is related to the impact of the proposed development in both its nature and extent.

Usage Notes

JurisJotter templates synthesize legal principles into a practical format that supports the development of well-structured, point-rich analyses in a timed exam.

The template features (1) headers identifying the overall issue, analysis, and conclusion. If the analysis begins with an umbrella rule that identifies elements, factors, or steps of the analysis, it will be followed by subheaders that signpost the analysis of each component.

The template also features (2) IRAC labels at the beginning of each paragraph. These headers and labels are included for educational purposes, offering guidance on structuring your analysis. Your usage of the headers is optional but can be helpful to readers. We advise against including the IRAC labels in submitted work.

The templates serve as a general guide for writing and should be adapted to align with (1) your specific factual circumstances and (2) your professor’s preferences, particularly if your professor provides explicit formulations of rules or analyses. For example, you may add or subtract an element or modify its language. Regardless of whether your professor provides explicit formulations, (3) this template will assist you in crafting point-rich analyses.

Please note that these templates are writing aids and not finished products. They are efficiently designed for exam essays to demonstrate conceptual understanding; thus, they are not comprehensive outlines with historical context or dicta.

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