Document Type
Article
Abstract
When private property is subject to regulation, courts sometimes find that it effects a taking requiring just compensation under the U.S. Constitution. This Article explains that what is deemed a regulatory taking can depend on the definition of property the court applies. There are two predominant ways property is defined: either as a bundle of rights or as a person’s dominion over a thing. The bundle of rights, or bundle of sticks, definition conceives of property as a collection of various, discrete rights held by a property owner and others in relation to a thing. These rights can be disaggregated and distributed to different individuals, and no particular right is essential to establish the thing’s existence as property. The competing Blackstonian view conceives of property in absolutist terms, as a thing over which the owner has complete dominion. Under the Blackstonian view, the right to exclude is essential, and sometimes sufficient without any other rights, to call something property. The U.S. Supreme Court’s regulatory takings jurisprudence has been shaped by and reflects these divergent definitions of property. In essence, when private property is regulated, the Court’s determination of whether the regulation constitutes a taking largely hinges on how it defines property. Yet, rather than adopting a single definition of property, the Court has relied on either or both of these approaches in its regulatory takings jurisprudence. This Article demonstrates how the bundle of rights and Blackstonian definitions of property have not only influenced the outcomes of pivotal regulatory takings decisions, but also how they could influence the outcome of future regulatory takings questions. Finally, it concludes with an example, set in Pittsburgh, Pennsylvania, examining how courts applying either definition would likely treat proposed inclusionary zoning regulations.
Recommended Citation
Maryann Herman,
Sticks and Blackstone: Regulatory Takings and the Definition of Property,
128
W. Va. L. Rev.
673
(2026).
Available at:
https://researchrepository.wvu.edu/wvlr/vol128/iss2/9