Eschewing Anticipatory Remedies for Takings: A Response to Professor Merrill
128 Harv. L. Rev. F. 202 (2015)
19 Pages Posted: 19 Apr 2015
Date Written: April 17, 2015
This is a Response to an Essay published by Professor Thomas Merrill entitled Anticipatory Remedies for Takings, 128 Harv. L. Rev. 1630 (2015). Professor Merrill argues that courts hearing takings cases have authority, in addition to awarding just compensation, to issue what he calls anticipatory remedies, defined to include “any remedy other than a judgment requiring the government to pay just compensation.” He contends that one line of Supreme Court precedent suggests that just compensation is the exclusive remedy for a taking, and that another line of precedent suggests that anticipatory remedies are appropriate. He argues that the second line of precedent is “correct” and also offers practical advantages over the first line of precedent. He urges the Supreme Court to embrace the second line of precedent instead of the first line. This Response argues that the Court’s precedents are not in actual conflict. Instead, the Court has ruled (correctly) that just compensation is the exclusive remedy for a taking for public use when the just compensation remedy is available, and the Court has also ruled (again correctly) that what Professor Merrill calls anticipatory remedies available -- but only when a taking does not serve a public use or the just compensation remedy is not available. Because these precedents are not in conflict but are entirely consistent with each, there is no need for the Court to pick one line of precedent over the other. This Response also disputes Professor Merrill’s contention that anticipatory remedies would offer practical advantages and also argues that adopting his proposal would generate new practical problems.
Keywords: takings; property rights; property; remedies
Suggested Citation: Suggested Citation