Non-Enforcement Takings

75 Pages Posted: 1 Mar 2018 Last revised: 10 Jul 2018

Date Written: February 20, 2018


The non-enforcement of existing property laws is not logically separable from the issue of unfair and unjust state deprivations of property rights at which the Constitution’s Takings Clause takes aim. This Article suggests, therefore, that takings law should police allocations resulting from non-enforcement decisions on the same “fairness and justice” grounds that it polices allocations resulting from decisions to enact and enforce new regulations. Rejecting the extant majority position that state decisions not to enforce existing property laws are categorically immune from takings liability is not to advocate that persons impacted by such decisions should be automatically or even regularly entitled to the Takings Clause’s constitutional remedy. Rather, it simply suggests that courts should resist the temptation to formulaically and categorically prohibit non-enforcement takings claims in favor of assessing those claims on the merits.

Keywords: enforcement, non-enforcement, regulatory takings, Takings Clause, property law, property theory, land use, environment, housing

Suggested Citation

Mulvaney, Timothy M., Non-Enforcement Takings (February 20, 2018). Boston College Law Review, Vol. 59, pp. 145-215, 2018, Texas A&M University School of Law Legal Studies Research Paper No. 18-03, Available at SSRN:

Timothy M. Mulvaney (Contact Author)

Texas A&M University School of Law ( email )

1515 Commerce St.
Fort Worth, TX Tarrant County 76102
United States

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