The Demise of Federal Takings Legislation

For more than 20 years, the Supreme Court has held that a federal takings claim is not ripe until the claimant seeks compensation in state court. The Court's recent opinion in San Remo Hotel, L.P. v. City and County of San Francisco, establishes that the federal full faith and credit statute applies to federal takings claims. The Court itself recognized that its decision limits the availability of a federal forum for takings claims. In fact, however, claim preclusion doctrine - not considered or discussed by the Court - may result in more stringent limits on federal court review of takings claims than the Court's opinion anticipates. The counterintuitive result - federal takings claims must be litigated in state court - plays a critical role in the Supreme Court's emerging takings jurisprudence, which largely delegates to state courts the primary responsibility for policing land use regulation.