Passive Takings: The State's Affirmative Duty to Protect Property

60 Pages Posted: 3 Apr 2014 Last revised: 23 Mar 2015

Date Written: April 2, 2014

Abstract

As conventionally understood, regulatory takings doctrine protects property owners from the most significant costs of legal transitions. Legal change has therefore always been central to regulatory takings claims. This Article argues that it does not need to be, and that governments can violate the Takings Clause by failing to act in the face of a changing world. This is much more than a minor refinement of takings law because government liability for failing to act means that, in at least some circumstances, the Takings Clause imposes an affirmative obligation on the government to protect property. This liability runs counter to conventional understandings of constitutional law in which the Constitution enshrines primarily negative liberties. The Takings Clause, then, can serve as a previously unrecognized basis for affirmative government obligations. The Article ultimately illustrates this new category of passive takings with the example of sea level rise, arguing that ecological threats may compel the government to respond or else face takings liability.

Suggested Citation

Serkin, Christopher, Passive Takings: The State's Affirmative Duty to Protect Property (April 2, 2014). Michigan Law Review, Forthcoming, Vanderbilt Public Law Research Paper No. 14-19, Available at SSRN: https://ssrn.com/abstract=2419482

Christopher Serkin (Contact Author)

Vanderbilt Law School ( email )

131 21st Avenue South
Nashville, TN 37203
United States
615-343-6131 (Phone)

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