Nationalization and Necessity: Takings and a Doctrine of Economic Emergency

3 Brigham-Kanner Property Rights Conf. J. 187 (2014)

Fordham Law Legal Studies Research Paper No. 2515333

31 Pages Posted: 29 Oct 2014  

Nestor M. Davidson

Fordham University School of Law

Date Written: October 27, 2014

Abstract

Serious economic crises have recurred with regularity throughout our history. So too have government takeovers of failing private companies in response, and the downturn of the last decade was no exception. At the height of the crisis, the federal government nationalized several of the country’s largest private enterprises. Recently, shareholders in these firms have sued the federal government, arguing that the takeovers constituted a taking of their property without just compensation in violation of the Fifth Amendment. This Essay argues that for the owners of companies whose failure would raise acute economic spillovers, nationalization without the obligation to pay just compensation should be recognized as a natural extension of the doctrine of emergency in takings. Public officials must be able to respond quickly to serious economic threats, no less than when facing the kinds of imminent physical or public health crises — such as wildfires and contagion — that have been a staple of traditional takings jurisprudence. Far from an affront to the rule of law, this reflection of necessity through an extension of emergency doctrine would reaffirm the flexibility inherent in property law in times of crisis.

Keywords: takings; eminent domain; AIG; Fannie Mae; Freddie Mac

Suggested Citation

Davidson, Nestor M., Nationalization and Necessity: Takings and a Doctrine of Economic Emergency (October 27, 2014). 3 Brigham-Kanner Property Rights Conf. J. 187 (2014); Fordham Law Legal Studies Research Paper No. 2515333. Available at SSRN: https://ssrn.com/abstract=2515333

Nestor M. Davidson (Contact Author)

Fordham University School of Law ( email )

140 West 62nd Street
New York, NY 10023
United States

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