April 7, 2016
How do property owners fare before the United States Supreme Court? McGeorge Distinguished Professor of Law John Sprankling explores this question in Property and the Roberts Court, a new study that will be published in the University of Kansas Law Review. His analysis reveals that property owners prevailed in 90% of civil property-related disputes with government entities that were decided by the Supreme Court between 2005 and 2015.
Sprankling analyzes four themes that help to explain this outcome. First, the Court has increasingly "propertized" the Constitution by interpreting the Second and Fourth Amendments through a property lens and by enlarging the scope of the Fifth Amendment's Takings Clause. Second, the Court's enhanced dedication to safeguarding homes has contributed toward its pro-owner orientation. Third, the Court's decisions have been influenced by distrust of government officials to adequately protect property rights. Finally, the Court has begun to redefine the scope of what constitutes "property" in a manner that increasingly expands the rights of owners.