The Governance Function of Constitutional Property

Abstract

Contemporary takings scholarship has devoted much attention to the problem of regulatory takings and has largely assumed that physical takings are resolved under a clear but simplistic per se rule. Under that rule modern courts automatically find a physical taking whenever government action causes a permanent physical invasion of property, regardless of the context or the importance of the public interest. Applying this bright line rule has proved to be difficult because it ignores the nuances of physical takings situations and the complexities of modern property arrangements. Should the physical takings concept apply to a rent control law that limits the ability of landlords to exclude tenants, to temporary but deliberate breaches of a levee to handle rising waters, to a law that forces landowners to accept an energy company’s underground drilling of shale deposits?

This article examines early and recent physical takings cases in light of modern property theory to demonstrate the greyness of many physical takings situations and to show how modern property theory could more effectively address those situations. A visual representation of the Court’s physical takings cases, developed from the results and logic of key cases, reveals the insufficiency of the Court’s analysis and suggests the need for more nuanced thinking. This more nuanced approach draws from modern property theory to examine physical takings claims not only under the traditional exclusion-based view of property but also from a governance perspective. Instead of deciding whether a government action subject to a physical takings claim is more like a permanent occupation violating the owner’s right to exclude or instead like a temporary trespass, courts should ask whether the exclusion or the governance strategy more effectively manages the private and public interests at stake. Seeing the resolution of physical takings conflicts as a choice between the exclusion and governance strategies – instead of as a choice between temporary versus permanent, direct versus indirect, continuous versus occasional – provides more explanatory power for the concept. When the dispute involves a resource subject to a complex property sharing arrangement, a resource needing more management because of overuse or changing natural conditions, a resource subject to a new use made possible through a technological advance, or an imminent public crisis, a governance approach allows fuller consideration of the complexity of the situation. The modern Court has overlooked this governance function in defining the reach of constitutional property under the Takings Clause.

Keywords: property rights, takings, property theory