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Abstract

This article reviews recent federal court decisions that have loosened the state litigation ripeness barrier to federal takings review based on its “prudential” character. Part II provides relevant background on Williamson County and the development of the state litigation rule. It explores the logic underlying the rule and the problems it causes in application. Part III reviews the judicial shift away from a jurisdictional understanding of the state litigation rule—under which compliance with the rule is a prerequisite to a court’s power to hear a takings claim—to a prudential view in which application of the state litigation rule lies within the court’s discretion. The article then reviews circuit court decisions that have declined to enforce the state litigation rule. It concludes that courts act correctly when they view the prudential nature of the state litigation rule as a license to balance fairness and other considerations in deciding whether to apply or not apply the rule, and that this understanding provides a partial solution to the jurisdictional confusion and inequity resulting from Williamson County.

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