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In Murr v. Wisconsin, the Supreme Court outlined a process for ascertaining the denominator in takings cases – an issue that arises both with respect to Penn Central takings claims and Lucas takings claims. The underpinnings of Penn Central claims and Lucas claims are not identical; Penn Central's primary concern is assuring fairness to landowners, while the focus of Lucas is on restricting government efforts to bypass the condemnation process. Although this difference in focus might suggest a difference in appropriate denominator, the Court's multi-factor balancing approach apparently applies to all takings claims. Although the Court's approach is consistent with Penn Central objectives, it is less consistent with Lucas objectives, and reduces the likelihood that Lucas claims will be successful.At the same time, the Court's opinion, if taken literally, appears to break both with basic federalism principles and with the Court's own doctrine by rejecting state law as the source for the takings denominator. Closer analysis reveals, however, that the factors outlined by the Court remain closely tied to state law, resulting in less of a break with principle and precedent than suggested by Chief Justice Roberts' dissent.

Until recently, a party seeking modification of an irrevocable trust needed approval from all interested parties, or from a court. The last decade, however, has brought a flood of state legislation authorizing trust decanting – a process by which a trustee "decants" trust assets from one vessel (the original irrevocable trust) into a second vessel (a new trust with terms designed to reflect the settlor's supposed intent). Most recently, the Uniform Law Commissioners have, in 2015, promulgated the Uniform Trust Decanting Act.Decanting enable trustees and trust beneficiaries to avoid the cost associated with judicial modification in cases where the irrevocable trust instrument included drafting errors or failed to account for unforeseen circumstances. But the proponents of decanting have largely ignored two significant issues raised by the decanting movement. First, the trustee, who may have been selected for reasons other than intimate knowledge of the settlor's wishes, is not always in an optimal position to assess that settlor's intent. In some cases, agency costs (the trustee's own interest in continuing to receive fees) may cloud the trustee's judgment about the wisdom of decanting.Second, decanting increases the potential for trusts to impose external costs on taxpayers and creditors. A number of recent innovations in trust law have expanded asset protection opportunities and enabled creation of perpetual trusts – innovations that enable trust settlors to avoid taxes and creditor claims. Trusts created before these doctrinal changes could not take advantage of these opportunities to impose external costs. Decanting, however, empowers trustees to obtain tax benefits and avoid creditors even when the settlor was willing to create the trust without the inducements provided by modern doctrinal "reform." Decanting to impose externalities generates social cost without any offsetting social benefit.

Even before the Supreme Court decided Nollan v. California Coastal Commission,' courts and scholars debated the wisdom and constitutionality of land use exactions and impact fees-government-imposed charges on the right to develop land. Many municipalities have long required developers to finance infrastructure improvements.s Fiscally drained municipalities, particularly big cities, had begun to use, or to consider using, exactions or their close cousins, "linkage" programs, as a means to finance a wider variety of government services. The controversy these fees have generated reflects more general concerns about financing local government. Municipalities and their defenders justify exactions and impact fees as necessary to assure that new development pays its own way rather than imposing external costs on existing residents. Others, however, express concern that unconstrained municipalities might use exactions to "extort" money from outsiders inadequately represented in municipal political processes-principally landowners and prospective homebuyers. The Court's decision in Nollan intensified the debate over exactions and impact fees. The Court held that a government may not condition approval of a permit on a landowner's sacrifice of an interest unrelated to the government's reasons for requiring the permit. The Court thus imposed what appear to be serious constitutional limits on municipal power to use exactions: The municipality can exact money from a developer only if it can demonstrate that its exaction is related to the harms caused by the developer's project.

Takings scholarship has long focused on the niceties of Supreme Court doctrine, while ignoring the operation of takings law "on the ground" – in the state and lower federal courts, who together decide the vast bulk of all takings cases. This study, based primarily on an empirical analysis of more than 2,000 reported decisions over the period 1979 through June 2012, attempts to fill that void.The study establishes that the Supreme Court's categorical rules govern almost no cases, and that takings claims based on government regulation almost invariably fail. By contrast, when takings claims arise out of government action other than regulation, landowners enjoy modest success. In particular, when government actions are taken by officials who are not politically accountable, state courts are more likely to scrutinize those actions.This pattern is consistent with what we believe to be the courts' basic project in this area: to develop doctrine that acknowledges the importance of property rights while also accommodating the needs of an activist state. By and large, political processes, not judicial doctrine, are left to serve as the primary check on government activity.