• Passive Takings in Action

    Christopher Serkin
    Michigan State Law Review
    Law, Eminent domain
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    Nearly ten years ago, I argued that government inaction in certain cases can violate the Fifth Amendment Takings Clause.1 I dubbed these “passive takings.” This category of liability, if recognized, would mean that the government can violate the Constitution by failing to act.2 Or, to put it even more provocatively, it would mean that the Constitution does not confer exclusively negative rights against the government but at least sometimes compels the government to act to protect private property.3 The motivating example was sea level rise, and I pointed out the perversity of the conventional rule that the government can be liable only if it acts, even if doing nothing is the costliest choice of all.4 While passive takings seemed like a radical extension of the Takings Clause, I argued that these claims follow surprisingly naturally from existing takings doctrine and theory.5 Moreover, I predicted that they could generate broad judicial and political support.6 Conservative champions of property rights would embrace expanding takings liability, while progressives would welcome the legal leverage to compel the government to address pressing problems like sea level rise. Under this theory, the Takings Clause is so protective of private property rights that it sometimes requires the government to regulate its protection. Unfortunately, courts so far have not agreed.7 While the issue of takings liability for government inaction has now been raised in a number of cases, every appellate court to consider the question has quite resoundingly rejected the very idea of passive takings liability. In these cases—some high profile and important—courts have held that some government action is a prerequisite to a regulatory takings claim.8
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    12 months ago
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