'As Much Upon Tradition as Upon Principle': A Critique of the Privilege of Necessity Destruction Under the Fifth Amendment

46 Pages Posted: 4 Apr 2012

See all articles by Derek T. Muller

Derek T. Muller

Pepperdine University - School of Law

Date Written: November 1, 2006


This Note explores the history of the privilege of necessity destruction, a common law defense that allows an individual to destroy property for the public good. It analyzes the history of the exception, defining the doctrine and comparing it to the traditional eminent domain power of the state. It first examines the three types of necessity destruction: general public necessity, military necessity, and law enforcement necessity. The general public necessity privilege has the deepest tradition, and it is the source of the original necessity destruction doctrine. It then applies the Fifth Amendment to the privilege of necessity destruction and finds destruction to be compensable within the scope of the Takings Clause. The Takings Clause had not yet been adopted when the legal theories were created, the Clause did not originally apply to state action, and the Clause was not understood to encompass any necessity destruction exception. The Note then examines the conflict between the Constitution and the common law exception, and it rejects the attempt to reconcile the two areas. Courts have attempted to describe necessity destruction as some other analogous exception to the Takings Clause, such as a nuisance theory, a definition that excludes it as a taking, or an aspect of the police power. These comparisons improperly shoehorn the necessity destruction privilege into some other category, because the privilege cannot stand on its own. It finally concludes with an examination of the lingering policy reasons behind the exception to determine if any justification for the exception exists in light of contemporary policy concerns. The maritime law of general average, which requires compensation for property owners at sea whose property is destroyed in a time of necessity, suggests that land-based property owners should receive similar compensation. Despite alternative policy concerns, "in all fairness and justice," to borrow the language of Armstrong v. United States, property owners should be compensated for property destroyed to benefit the public. The text and policy of the Takings Clause should supersede this privilege, and injured property owners should receive compensation.

Keywords: fifth amendment, takings, destruction takings, necessity, public necessity, private necessity, maritime, general average, common law

JEL Classification: K00, K10, K11, K40

Suggested Citation

Muller, Derek T., 'As Much Upon Tradition as Upon Principle': A Critique of the Privilege of Necessity Destruction Under the Fifth Amendment (November 1, 2006). Notre Dame Law Review, Vol. 82, No. 1, 2006. Available at SSRN: https://ssrn.com/abstract=2032259

Derek T. Muller (Contact Author)

Pepperdine University - School of Law ( email )

24255 Pacific Coast Highway
Malibu, CA 90263
United States
310-506-7058 (Phone)

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