Here’s the latest, a student-authored note, “‘Background Principles’ and the General Law of Property,” 138 Harv. L. Rev. 2071 (2025).
Here’s the argument:
Background principles are a strong medicine. When a court analyzes a takings claim, it must first identify the property interest at issue before deciding the more complex, discretionary question of whether that property was “taken.” Background principles are “logically antecedent” to this analysis, meaning that they can foreclose an aggrieved property owner’s claim before the first step.
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In recent years, the Supreme Court has increasingly defined property by looking beyond state-specific law, toward a more dynamic, unbounded body of what might be called “general property law” or “jurisdictionless property law.”
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This Note fills that gap by demonstrating that the collision of ascendant general property law and the background principles exception could ultimately cause the Takings Clause to underprotect property interests. Part I provides background on the law of takings and describes the development of background principles jurisprudence. Next, Part II tracks the Court’s recent shift toward a general law approach to property. Finally, Part III challenges the intuition that federal courts primarily apply general law to protect property rights, for example by preventing a state from “extinguish[ing] a property interest . . . to avoid paying just compensation.” To do so, it examines two recent cases in the federal circuit courts that denied takings claims based on general law background principles. The general law approach may systematically underprotect property rights by increasing the level of generality at which background principles are defined, placing the burden on plaintiffs to find historical analogues entitling them to compensation, and undermining property owners’ notice of background limitations on their title.
A provocative thesis: property rights would be better served by looking exclusively to state law.
But we must note that resorting to general principles of law (what we cheekily refer to as the Playground Constitution) would not be necessary if state courts and legislatures didn’t constantly futz around and try to limit general principles of property. True, as the author points out there are a few instances where state law recognized more rights than plain old dirt law; but most of the stuff that gets people worked up go the other way.
How about this for a rule: a state’s definition of “private property” is good when it meets certain minimal general property law principles. Recognize more? Just fine. But states cannot recognize less.
When in doubt, more rights win. We can live with that.
In any event, we highly recommend you read this, whether or not you agree or disagree with the author’s conclusion. Available online here, or for your old-fashioned folks, you can download the pdf here.
And before you dismiss the Note’s thesis, just remember: in about 10 years there’s a decent likelihood you are going to be calling the author “Your Honor.”