Passive Takings: The State's Affirmative Duty to Protect Property

Authors

Christopher Serkin, Vanderbilt Law SchoolFollow

Abstract

The purpose of the Fifth Amendment’s Takings Clause is to protect property owners from the most significant costs of legal transitions. Paradigmatically, a regulatory taking involves a government action that interferes with expectations about the content of property rights. Legal change has therefore always been central to regulatory takings claims. This Article argues that it does not need to be and that governments can violate the Takings Clause by failing to act in the face of a changing world. This argument represents much more than a minor refinement of takings law because recognizing governmental liability for failing to act means that, in at least some circumstances, the Constitution compels the government to protect property. Such liability runs counter to conventional understandings of constitutional law in which the Constitution primarily enshrines negative liberties. And yet this liability follows surprisingly naturally from leading takings and property theory. The Takings Clause, then, can serve as a previously unrecognized basis for affirmative governmental obligations. The Article ultimately illustrates this new category of passive takings with the example of sea-level rise, arguing that ecological threats may compel the government either to respond or pay compensation for the damages resulting from this ecological change.

Recommended Citation

Christopher Serkin, Passive Takings: The State's Affirmative Duty to Protect Property, 113 Mich. L. Rev. 345 (2014).
Available at: https://repository.law.umich.edu/mlr/vol113/iss3/1