Takings and Implied Causes of Action

Abstract

History and precedent tell us that the just compensation requirement has been implemented by a complex network of remedies providing multiple avenues for redress. To say that the Takings Clause requires adequate remedies is not the same as saying that the Clause requires an implied action directly against the states that can be brought in federal courts.

In DeVillier v. Texas, a group of property owners asked the Supreme Court to imply a private right of action against the State of Texas to remedy alleged violations of the Takings Clause. The Supreme Court, however, did not determine the implied-right-of-action issue, because “Texas state law provides a cause of action by which property owners may seek just compensation against the state.”

The Court correctly directed inverse condemnation plaintiffs to state law claims rather than implying a cause of action against the state. While there is a long tradition of takings remedies, the Court has not implied damages remedies against the sovereign states. And given the widespread availability of various remedies, including state-law remedies against the states, there is no necessity to imply a takings remedy. Were a state to attempt to withdraw remedies against itself and its officers, the Court has a number of options to provide adequate redress even within the strictures of sovereign immunity.

Keywords: DeVillier, just compensation, takings, inverse condemnation, soverign immunity, implied rights of action, property, federal courts