Government Forbearance: Myth or Reality?

29 Pages Posted: 4 Feb 2014 Last revised: 25 Jan 2018

See all articles by James W. Ely

James W. Ely

Vanderbilt University - Law School

Date Written: February 3, 2014


This paper examines the thesis advanced by Thomas M. Merrill and Henry W. Smith in Property (2010) that various factors, including the political process, induce governments to forbear from unduly interfering with the rights of property owners. Expressing confidence in government, the authors prefer minimal judicial oversight of private property. This paper argues that legislators are more responsive to perceived political imperatives than to constitutional limits that dictate restraint. It concludes that the political process is unlikely to afford much protection to individual owners in the context of eminent domain or land use regulation. Moreover, any protection provided by the political system is likely to be skewed in favor of the wealthy and politically well-connected, and not assist the most vulnerable. Nor can federalism be seen as an effective deterrent to government abuse of property rights. Exit strategies are irrelevant to fixed assets, such as land, which cannot leave a jurisdiction to escape onerous taxes and regulations. Finally, the paper challenges constitutional doctrines which marginalize the rights of property owners while providing greater judicial solicitude for other claims of individual rights. Rejecting the government forbearance thesis, it finds no excuse for judicial abdication in enforcing the property clauses of the Constitution.

Keywords: David J. Brewer, Charles River Bridge v. Warren Bridge, Contract clause, Eminent domain, Fair market value, Federalism, Governmental forbearance, Just Compensation, Kelo v. City of New London, Political process, Property rights, Public use, Railroads, Takings clause, Roger B. Taney

Suggested Citation

Ely, James W., Government Forbearance: Myth or Reality? (February 3, 2014). 3 Brigham-Kanner Property Rights Conference Journal, 125 (2014); Vanderbilt Public Law Research Paper No. 14-2; Vanderbilt Law and Economics Research Paper No. 14-2. Available at SSRN:

James W. Ely (Contact Author)

Vanderbilt University - Law School ( email )

131 21st Avenue South
Nashville, TN 37203-1181
United States

Register to save articles to
your library


Paper statistics

Abstract Views
PlumX Metrics