Takings Localism

Authors

Nestor M. Davisdson, Fordham Law SchoolFollow
Timothy M. Mulvaney, Texas A&M University School of LawFollow

Document Type

Article

Publication Date

3-2021

Journal Title

Columbia Law Review

ISSN

0010-1958

Abstract

Conflicts over “sanctuary” cities, minimum wage laws, and gender-neutral bathrooms have brought the problematic landscape of contemporary state preemption of local governance to national attention. This Article contends that more covert, although equally robust, state interference can be found in property, with significant consequences for our understanding of takings law.

Takings jurisprudence looks to the states to mediate most tensions between individual property rights and community needs, as the takings federalism literature recognizes. Takings challenges, however, often involve local governments. If the doctrine privileges the democratic process to resolve most takings claims, then, that critical process is a largely local one.

Despite the centrality of local democracy to takings, state legislatures have restricted local authority on property issues in a range of ways. States have expanded compensatory liability for owners facing local regulations, imposed procedural constraints on local authority, and limited the exercise of foundational local powers. Seen in its entirety, this state intervention—like contemporary “new preemption”—is acontextual and unduly rigid, cutting at the heart of the devolutionary principles underlying takings jurisprudence.

This unbalanced state role requires a recalibration of decisionmaking power between state and local government to foster intersystemic dialogue and reflection. States certainly play a crucial role in defining and protecting property interests, but they must justify choices to constrain local discretion when state and local values conflict. The extant state statutory regime dispenses with this justificatory task via a formalistic disregard for the contextualization that legitimates vertical allocations of authority. A corrective to decades of imbalance in state ordering of local authority would thus properly recognize “takings localism.”

First Page

215

Last Page

276

Num Pages

62

Volume Number

121

Issue Number

2

Publisher

Columbia Law School

Recommended Citation

Nestor M. Davisdson & Timothy M. Mulvaney, Takings Localism, 121 Colum. L. Rev. 215 (2021).
Available at: https://scholarship.law.tamu.edu/facscholar/1467

File Type

PDF