The Shadow Takings Doctrine

Abstract

The Fifth Amendment Takings Clause provides “nor shall private property be taken for public use, without just compensation.” Historically, the Clause protected landowners against appropriation by the state and against permanent physical occupation equivalent to “practical ouster of the owner’s possession.” In 1922, the Supreme Court in Pennsylvania Coal Company v. Mahon enacted a sea change in the doctrine by recognizing that a taking can occur when a regulation “goes too far.” Over time, the Court has developed a takings jurisprudence for temporary physical intrusions as well as regulations of use, which I term the “shadow takings doctrine.”

Although the Court has never offered any convincing explanation for the doctrine—and has at times, expressly declined to do so —its cases appear to be a subtle attempt to preserve existing entitlements to property, akin to Lochner v. New York. Just like Lochner and its progeny, the shadow takings doctrine, by stagnating the ability of property law to adapt to contemporary needs, entrenches existing entitlements in the face of societal change. In doing so, it threatens to undermine property’s utilitarian justification. Thus, this shadow doctrine should be abandoned. Instead, the doctrine’s chief purpose—which is “to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole” —can and should be advanced solely through other elements of the federal Constitution and state law.

In Part II, I describe the main outlines of the Court’s takings jurisprudence, focusing on the “property” and “takings” terms of the Clause, with a focus on the Court’s land use and environmental cases. I recharacterize the Court’s takings cases as falling into two strands: the “original takings” strand that includes confiscation and its equivalent of permanent physical occupation, and a shadow takings doctrine that includes temporary physical occupation and regulations on use. In both strands, the Court asserts that “property” is defined by non-constitutional, positive law, but the Court in practice defines property interests by selectively favoring common law over other forms of law. The Court also, without explanation, selectively gives the rights to exclude and to convey unduly heightened protection over the right to use.

Part III argues that the Court’s shadow takings doctrine is wrong. First, the doctrine should be rejected because it is inconsistent with the original understanding of the Takings Clause as well as the early doctrine, and because it is extremely confusing. Second, the Court’s jurisprudence cannot be justified on either utilitarian or natural rights grounds broadly defined. Rather, the doctrine parallels the Court’s efforts in Lochner to protect existing entitlements of resources against legislative change, and ought to be rejected just as Lochner was in 1937.

Part IV argues that abandoning the shadow takings doctrine would not implicate the fundamental fairness concern of the doctrine, because state law and other provisions of the federal Constitution adequately address it. Part V concludes.