Non-Enforcement Takings

Authors

Timothy M. Mulvaney, Texas A&M University School of LawFollow

Document Type

Article

Publication Date

1-2018

Journal Title

Boston College Law Review

ISSN

0161-6587

Abstract

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.

First Page

145

Last Page

215

Num Pages

71

Volume Number

59

Issue Number

1

Publisher

Boston College Law School

Recommended Citation

Timothy M. Mulvaney, Non-Enforcement Takings, 59 B.C. L. Rev. 145 (2018).
Available at: https://scholarship.law.tamu.edu/facscholar/1173

File Type

PDF