Legislative Exactions and Progressive Property

Authors

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

Document Type

Article

Publication Date

12-2016

Journal Title

Harvard Environmental Law Review

ISSN

0147-8257

Abstract

Exactions — a term used to describe certain conditions that are attached to land-use permits issued at the government’s discretion — ostensibly oblige property owners to internalize the costs of the expected infrastructural, environmental, and social harms resulting from development. This Article explores how proponents of progressive conceptions of property might respond to the open question of whether legislative exactions should be subject to the same level of judicial scrutiny to which administrative exactions are subject in constitutional takings cases. It identifies several first-order reasons to support the idea of immunizing legislative exactions from heightened takings scrutiny. However, it suggests that distinguishing between legislative and administrative measures in this context could produce several second-order consequences that actually undercut the goals of progressive property theory.

First Page

137

Last Page

171

Num Pages

35

Volume Number

40

Issue Number

1

Publisher

Harvard Law School

Recommended Citation

Timothy M. Mulvaney, Legislative Exactions and Progressive Property, 40 Harv. Envtl. L. Rev. 137 (2016).
Available at: https://scholarship.law.tamu.edu/facscholar/1083

File Type

PDF