You know the claim: even after the federal courts opened back up to regulatory takings claims, winning a case is still pretty difficult.
Yes, that may be by design: maybe it's not supposed to be easy to get in the way of the regulatory state and prevail on a claim that a government action has "gone too far" by having similar effects on the owner's property rights as an exercise of eminent domain. Or maybe it is. But either way, those of you who have been at this long enough can sense that something isn't quite right. That our property owners are not getting a fair shake from the courts. That there's an imbalance in The Force.
Whether it is surviving a motion to dismiss where the court applies stricter pleadings standards than in other civil cases, or getting to the merits by escaping summary judgment, or even having a court of appeals wipe out a favorable jury verdict, it is the rare lawyer that doesn't counsel the client that these are tough cases, and not simply because they are difficult to prove. Or, in the words of student-author Ramsey Thrasher, "daunting."
We'll say. His newly-published article, "Daunting Odds: Regulatory Takings Claims in The United States Circuit Courts of Appeals" (94 Miss. L. J. 637 (2025)), puts forward some empirical proof you aren't just imagining it: "[O]ut of the 366 total cases, only twenty-four decisions have been rendered in favor of the claimant throughout every circuit." The article studied all of the regulatory takings decisions by the federal appeals courts, and lays out the stats.
Here's the summary, from the Introduction:
Since the latter half of the 20th century, the federal Circuit Courts of Appeals have ruled on numerous regulatory takings claims. The cases cover a diverse plethora of issues and industries allegedly affected by regulations, ordinances, and statutes passed by government entities throughout the country. While the factors surrounding the cases are different, the outcomes are shockingly parallel.This paper aims to compile and compare the many cases under regulatory takings law. Part I establishes a strong foundation by providing a thorough background into Takings Law. This section not only describes regulatory takings but also introduces seminal cases such as Penn Central Transportation Company v. City of New York, which produced the standard test applied to regulatory taking claims today.Part II consists of a detailed overview of each circuit’s approach to regulatory takings claims. Included in each analysis is a breakdown of how many regulatory takings claims have been decided by each court, how many times the courts have ruled in favor of the government entity compared to the claimant, the industries allegedly affected, reasoning commonly asserted by the courts as to why the regulatory taking claims have failed, and how the courts have applied the Penn Central test.Part III then analyzes whether the courts have remained consistent, whether the courts seem to protect property rights or promote government intrusion, whether a prediction can be made on how the courts will rule on regulatory taking claims in the future, and whether bringing a successful regulatory takings claim is equally as daunting in each circuit.
The piece goes through each circuit, and there's a section on how the courts' track record may be used to predict how those courts will rule down the road. The bottom line: a claimant 6.6% chance of success:
The number of cases addressing regulatory takings compared to the overall low success for regulatory taking claims allows for one to predict with relative ease how the court will rule on future regulatory taking claims. Over the almost fifty-year span since the courts first began deciding regulatory taking issues, the courts have rendered decisions in 366 cases. In 342 of those cases, the court ruled in favor of the ordinance, regulation, or statute. On the other hand, the court ruled in favor of the claimant in only twenty-four cases. These figures indicate that a claimant has a 6.6 percent chance of bringing a successful regulatory taking claim in front of a federal circuit court of appeals. Considering this low success rate and the courts’ level of consistency, excluding the 2000s, it is relatively convenient to assume the courts will continue to rule against the complaint in future regulatory taking claims.
94 Miss. L. J. at 677.
The culprit? Penn Central. See id. ("Furthermore, as long as the Penn Central test remains unaltered and the standard in evaluating regulatory taking claims, claimants can expect the courts to rule in favor of the government action. While some praise the Penn Central test for its flexibility, others believe the test is “maddeningly unpredictable” and 'favor[s] the government in most situations.'").
Check it out. This is a must-read, if only to confirm your gut sense that there's a thumb on the scale and the low success rate isn't due to bad cases.
